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The Ninth Circuit On Child Support, Restitution, and Domestic Slavery

Zoraida Pena Canal was like any other live-in nanny, except she worked from 6 a.m. until 10 p.m., wasn’t allowed to talk with anyone other than the family she worked for, her employer held her passport, and she wasn’t paid for the two years she worked as a nanny.

Her employer, Mabelle Dann, was convicted at trial of document servitude in violation of 18 U.S.C. S 1592, forced labor charges in violation of 18 U.S.C. 1589, and immigration charges. She was sentenced to five years in prison.

As the Ninth Circuit’s opinion in United States v Dann, by Judge Gertner of the District of Massachusetts, sitting by designation, starts:

The parties at trial and on appeal present two competing narratives. Dann contends that this case is a not unusual story of the relationship between two women, with all its ups and downs. As a divorced, single mother with three small children, Dann was desperate. She gave Pena Canal the opportunity to come to the United States, and she treated her as a family member. Dann took care of, housed, and fed Pena Canal, and wanted to pay her as soon as she had the chance. Dann hoped to give Pena Canal a room of her own but was unable to do so. The two women had their fights, as all family members do. After Pena Canal left Dann, she discovered that she could obtain a T-Visa and stay in the United States, as long as she testified against Dann. Pena Canal’s testimony is tainted by her incentive to lie.

The government in turn portrays a woman who went to great lengths to violate immigration laws so that Pena Canal could work for her. She needed cheap — or free — labor, and this was her means of procuring it. Her behavior towards Pena Canal became worse and worse over time, culminating in Pena Canal’s working without pay in slave-like conditions, fearful of what would happen if she were to leave.

Dann challenged both the fact of her conviction and the sentence. Both were upheld.

I won’t spend much time on the facts, except to note one exchange in the trial testimony where Ms. Dann and Ms. Pena Canal were arguing over whether Ms. Pena Canal was a slave. She wasn’t allowed to leave the house, talk to anyone else, and hadn’t been paid. To my mind, if you’re arguing with your unpaid employees over whether you’re a slave holder, you probably are.

The case presents, though, a remarkable restitution issue.

Ms. Dann was ordered to pay significant restitution to Ms. Pena Canal for holding her in slavery and not paying her for two years.

Ms. Dann was owed back child-support from the father of her children. The district court held that this child support debt was properly disgorgeable to Ms. Pena Canal as restitution. The money had already been spent, and was payable to Ms. Dann, the court reasoned, so it is Ms. Dann’s money, and is subject to the restitution order.

The Ninth Circuit disagreed. The appeals court held that because child support payments are always the property of the child, provided the child is not yet an adult, they can’t be ordered disgorged from the parent in a restitution order.

That much seems reasonable -until you think about it. The child support was, in part, for services provided by Ms. Pena Canal. And Ms. Dann is going to spend five years in prison, where she most certainly won’t be supporting the kids with the income that comes in from the back child support.

So, to recap, the State of California will collect the back child support through its child support enforcement mechanisms. The money will not go to Ms. Pena Canal, the woman who did the actual work of parenting. Instead, the child support will go to the woman who is unable to support the children, because she’s in a federal prison for five years.

The court recognized this is more than a little odd, and that the district court’s order including the child support arrearage in the restitution order does seem equitable. But the court determined that the law is clear,

under California law, a creditor (in this case a crime victim with a restitution order) is not entitled to accrued child support payments owed to a custodial parent of children who have not yet reached the age of majority.

This is a tricky problem. Someone is going to have to watch over and support those kids. Ms. Dann won’t be in a position to do it while in prison. If she gets the child support arrearage, and uses it to support the kids while she’s not able to, I suspect most people would be comfortable with that.

Though there’s no guarantee that’s how this will play out.

If you have questions about how federal criminal charges are different than state criminal charges, please visit this page on Maryland federal criminal charges or Washington DC federal criminal charges.