Remarkable new trial order in remarkable federal prosecution over house cleaner

A helpful reader altered me to a remarkable 50-page order issued last week by Judge Douglas Woodlock in US v. Henderson, No. 09-10028 (D. Mass. Apr. 25, 2012) (available here). The underlying case seems drawn from a Kafka novel, though Judge Woodlock references other authors (ranging from Emerson to Macaulay to Shakespeare to Thucydides) in the course of ordering a new trial. The full opinion merits a full read, and here is how it gets started:

In this criminal case the heedless, hapless, and negligent hypocrisy of the defendant confronts the stern, solemn, and implacable sanctimony of the government over a matter of household employment: the periodic engagement of a cleaning lady.

Now before me is the question whether a jury verdict supporting a felony conviction should stand in a case where an unmarried professional woman -- with supervisory responsibility for the government in enforcing immigration laws -- employed a person she came to learn was an illegal alien to clean her home from time to time and, when asked, advised the cleaning lady generally about immigration law practices and consequences.  The question is framed by the defendant’s renewed motion for a judgment of acquittal and, in the alternative, by her motion for a new trial.

The cleaning lady’s employment was not itself illegal under regulations promulgated by the Attorney General of the United States.  And the empathetic advice that the defendant gave her cleaning lady about immigration law practices -- induced from the defendant as part of the script contrived for an elaborate undercover investigation involving surreptitious electronic recordings into her relationship with the cleaning lady -- did not advise the cleaning lady to engage in fraud or commit some other crime.

Yet Customs and Border Protection administrative rules prohibit CBP personnel like the defendant from employing an illegal alien, sanctioning such conduct on a spectrum from a fourteen day suspension to removal.  And, more menacingly, a federal criminal statute carrying a five year maximum incarcerative sentence makes it a felony to “encourage or induce” an illegal alien “to reside” in this country.

The defendant's employment of an illegal alien as an intermittent cleaning lady in her home coupled with the immigration advice she gave her was considered sufficient by an earlier administration of the United States Attorney’s Office to mount this felony prosecution. The Office determined to exercise its considerable discretion, despite the fact that the parallel misdemeanor provision treats even more significant conduct as de minimis and consequently not meriting criminal sanction, to initiate this unusual prosecution under a felony statute designed to address conduct so serious that it provides a predicate for application of the blunderbuss Racketeering Influenced and Corrupt Organizations (“RICO”) statute...

I view the pursuit of this case to have been overkill through the improvident invocation of federal criminal felony process when alternative administrative sanctions more closely tailored to the significance of the misconduct are available and adequate.  And I am puzzled by the dogged consistency which causes this prosecution to continue.  However, my responsibilities at this point are limited to determining whether the federal criminal law can permit such a prosecution and, if so, how a fair trial of such a prosecution may be managed.

After careful and extended review of the serious felony criminal statute the government invokes, I must conclude -- under principles of statutory construction applicable to criminal provisions -- that the government has the power to pursue such a prosecution.  However, I also must conclude -- in light of case law developing in the federal appellate courts while I have had this matter under advisement -- that my instructions to the jury as to the elements of the crime were inadequate, and that a new trial is warranted in which appropriate jury instructions fashioned in response to recent developments in the case law will be delivered.

I suppose we all should be pleased to learn that federal criminal offending is so rare in Massachusetts that the federal prosecutors have ample time to go after folks for mistakes they make in hiring someone to clean their townhouse every few weeks.  But given my sense that federal tax dollars could and should be put to more pressing matters, I cannot take much pleasure in learning just what some folks in Boston decided should be made a federal felony case.