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United States of America v. Omelyan Botsvynyuk

July 16, 2012

UNITED STATES OF AMERICA
v.
OMELYAN BOTSVYNYUK



The opinion of the court was delivered by: Diamond, J.

MEMORANDUM

After a month-long trial, the jury convicted Defendant Omelyan Botsvynyuk of RICO Conspiracy and Hobbs Act Extortion. (Doc. No. 155); 18 U.S.C. §§ 1951, 1962(d). The evidence established in overwhelming and horrifying detail how Defendant, his four brothers, and others trafficked in slaves, smuggling Ukrainian citizens into the United States and compelling their uncompensated labor by violence and threats. (Doc. No. 1.) The jury found Defendant personally liable for committing aggravated sexual assault in connection with the predicate crimes of peonage and involuntary servitude. (Doc. No. 155.)

Now, some eight months after trial, Defendant argues for the first time that his "Indictment must be dismissed" as time-barred. (Doc. No. 223 at 2.) I will deny Defendant's "Motion to Dismiss Indictment or Motion in Arrest of Judgment / Motion for Judgment of Acquittal." (Doc. No. 223.) Defendant has waived his belated statute of limitations defense, which, I conclude in the alternative, is meritless.

I. BACKGROUND

A.Facts

The trial evidence showed that the Botsvynyuk Organization-comprising Defendant, his four brothers, and loosely-confederated associates in Ukraine, Poland, Mexico, and the United States-recruited workers in Ukraine with the promise of a better life in the United States. The Organization focused its recruiting activities in Chernivtsi Oblast, an impoverished area in Ukraine. The victims-who were often related-had difficult lives, earning the equivalent of twenty to fifty American dollars a month, or running retail businesses whose meager profits were taken by criminals offering "protection." (E.g. Doc. Nos. 175 at 5--6; 192 at 5; 193 at 61.) The Organization promised to arrange for each victim's direct transportation and lawful admission to the United States, to house and feed him or her, and to pay each a monthly wage of $500. (E.g. Doc. Nos. 192 at 9--12; 193 at 68--70.) The Organization told the victims that for three years they would "work off" their "debt"-the cost of arranging their transportation to the United States, their food, and their housing. They would then be free to seek their own employment. (E.g. Doc. Nos. 192 at 11; 193 at 70.)

The Organization kept none of these promises. After leaving their homes in Ukraine, the victims learned that their passage to the United States would be neither direct nor lawful. Victims came to learn that the Organization had arranged for visas to Mexico, not the United States. (E.g. Doc. No. 192 at 73:23--25.) Typically, the Organization transported the victims by a similar, circuitous route: a bus to Kiev; a train to Chernobyl; a car to Poland; a flight to Germany or the Netherlands; and another flight to Mexico City, where each victim was instructed to bribe Mexican immigration officers. Once in Mexico, the victims travelled for some two hours by car to Mexicali or Tijuana, on the United States border. (Doc. No. 175 at 8-- 17.)

With the assistance of the Organization's associates in Mexico, the victims entered the United States unlawfully, usually by walking across the border at a pedestrian checkpoint. (Doc. No. 193 at 78--81; see also Doc. Nos. 175 at 15--16 (illegal entry by ship); 196 at 29--31 (illegal entry through sewers).) The victims were instructed that if they were denied entry, to repeat the attempted crossing until successfully in the United States or detained by American immigration authorities. (Doc. No. 193 at 78--81.)

Many of the victims were detained, often for weeks in a California immigration facility. The Organization provided each detainee with an attorney, who instructed the detainee falsely to claim political asylum. (E.g. Doc. No. 192 at 36--38, 41--42.) The detainee eventually would be released pending an asylum hearing to take place in California several weeks later. (E.g. id. at 38--39.) Acting on instructions from the Organization, the detainee travelled, usually by bus, to Omelyan Botsvynyuk's row house in the Port Richmond section of Philadelphia-a three to five day journey. (E.g. id. at 40--41.)

Defendant, who was the leader of the Organization, set the tone for his relationship with his victims immediately upon their arrival. For instance, one victim testified that Defendant greeted her by yelling, "Well, about time you got here, bitch." (Doc. No. 196 at 38:9; see also, e.g., Doc. No. 175 at 20:23 ("Oh, so here you are dirty slut.").) Defendant took the victims' passports and immigration papers, and prohibited them from attending their immigration hearings. (E.g. Doc. No. 192 at 78.)

Although exhausted from their perilous journeys, the victims promptly commenced work, often on the night they arrived or the next night. (E.g. Doc. No. 192 at 51:8; 193 at 19--20; 202 at 10:17--20.) Victims typically worked long overnight shifts, cleaning offices and stores (such as Walmart), seven nights a week, with no holidays except Christmas. (E.g. Doc. Nos. 193 at 85--86, 90--91; 202 at 11:5--19.)

Omelyan Botsvynyuk and his brothers Stepan, Yaroslav, and Mykhaylo all had separate residences in Port Richmond. Each housed his own "crew" of workers. (E.g. Doc. Nos. 193 at 85--86; 196 at 40; 202 at 11, 51.) Their living conditions were, to put it kindly, Spartan. For instance, Defendant made seven workers share one small bedroom. (Doc. No. 193 at 84--85.) Some workers slept in the hallways of Defendant's house. (Id. at 85; Doc. No. 202 at 12:9--10.) The victims slept on bare mattresses-two to a mattress. (E.g. Doc. No. 193 at 85.) Defendant kept fresh food in his own bedroom for his own consumption. Only when it began to spoil did he provide the food to his "crew." (Doc. Nos. 172 at 45--46; 200 at 5.)

The Organization did not pay the victims for their labor. Defendant told one arriving worker that he would be paid only $300 a month. When the victim asked why, Defendant struck him. (Doc. No. 192 at 46:11--19, 62--63.) In fact, the victim received no compensation for his labor. (Doc. No. 192 at 77.) The Organization gave the victims extremely limited funds for food and rent, but payments for the victims' labor went directly and exclusively to Defendant. (E.g. Doc. Nos. 192 at 57--58; 196 at 44--45, 48.) Although Defendant's "crew" usually worked in the Philadelphia area, all the "crews" often worked in other areas-Quakertown, Pennsylvania, Albany, New York, Oxon Hill, Maryland, and other cities. (Doc. Nos. 192 at 92; 193 at 109; 196 at 43, 46.)

The Organization compelled the victims' labor through threats, violence, and dependence, creating a climate of pervasive fear. The victims were in the United States illegally, spoke little or no English, had no passports or immigration papers, and little or no money. Defendant warned them that if they went anywhere, police would arrest them. (E.g. Doc. Nos. 175 at 20:25--21:4; 176 at 16:15--20; 193 at 91:15--19.) The victims thus were initially afraid and unable to escape from the Organization.

Defendant and his brothers repeatedly abused and terrified their victims. Because different "crews" often worked together, they discussed these abusive incidents, thus heightening the fear all the victims felt. (E.g. Doc. Nos. 172 at 43--44; 200 at 103.) Defendant continually berated his victims, calling the men "fagot" and the women "dirty slut" or "bitch." (Doc. No. 172 at 35:17--20.) Without reason, Defendant often grabbed the genitals of male workers, causing excruciating pain. (Doc. No. 196 at 52:8--11.) When two victims were fired from a cleaning job, Defendant and his brother Yaroslav castigated and beat them. (Doc. No. 192 at 66--69.)

Some victims secretly held "side jobs," by which they earned money they would later use to try to escape from the Organization. (E.g. Doc. No. 196 at 44--45.) The initial results were mixed. O.H. testified that she was terrified after Defendant and his brothers found a would-be escapee, beat him unconscious, doused him with water to wake him, then beat him unconscious again. (Doc. No. 196 at 53.) When the sisters of one victim escaped, Defendant and Stepan Botsvynyuk beat the victim continually over twenty-four hours in an unsuccessful effort to induce him to disclose his sisters' whereabouts. (Doc. No. 200 at 108--11.) The bruises and wounds that covered the victim's body were so severe that another victim wept when he first saw them. (Doc. No. 202 at 57--58.) After another victim attempted to escape, Omelyan and Stepan Botsvynyuk successfully hunted him and beat him severely, telling other victims that this was the consequence of escape. (Doc. Nos. 192 at 71; 193 at 113.)

The Botsvynyuks also continually threatened their victims' families. (E.g. Doc. Nos. 192 at 76; 196 at 55; 200 at 104, 108--11.) As described below, Omelyan Botsvynyuk made these threats to the families by telephone or face-to-face in Ukraine to control the victim-laborers in the United States and to extort money from them.

Omelyan Botsvynyuk visited the most horrific treatment upon his female victims. Shortly after M.S.1 arrived in Philadelphia, she was in the kitchen of Defendant's house when he suddenly entered and, screaming, seized her by the shoulders. She ran to the bathroom and locked the door. Defendant broke through the door, grabbed M.S.1 by the hair, dragged her from the bathroom, and, strewing patches of hair, threw her down a flight of stairs. (Doc. No. 176 at 21--22.) This caused M.S.1 to black out and left a bleeding bald spot on her scalp. (Id. at 24.)

Defendant raped M.S.1 on three separate occasions. First, while M.S.1 was sleeping, Omelyan Botsvynyuk woke her, held her head back, and forced cognac down her throat. When she tried to get away, he punched her in the stomach and pushed her onto a sofa. Tearing off her clothes, he screamed "bitch, prostitute, dirty slut," and raped her. (Id. 176 at 25--27.) Some time later, while M.S.1 was doing laundry, Defendant again seized her, taped her mouth shut, tied her hands behind her back, threw her to the floor, and raped her both vaginally and anally, causing her to bleed from her anus for some two months. (Id. at 28--29.) Finally, when M.S.1-who slept in the cellar of Defendant's house-was falling asleep, Defendant and two unknown men entered, taunted her, and gang-raped her. (Id. at 30--31.)

Omelyan Botsvynyuk did not permit M.S.1 to seek medical attention after any of these incidents. (Id. at 24:23--25, 27:17--18, 29:20--23, 32:5--7.)

Shortly after I.S. arrived in Philadelphia, she sat in Defendant's kitchen eating soup. Defendant repeatedly walked around her, touching her shoulders, saying "oh, I like," and "treating [her] as if [she] was this thing." (Doc. No. 200 at 28--29.) When I.S. ran to the bathroom, Defendant "ripped off the door to the bathroom," and screamed, "What do you think, everything will be the way you want? Everything will be the way I say it." (Id. at 29:9--13.) Defendant told I.S.-whose sister worked for one of Defendant's brothers-that he would take her sister "to the house of prostitution." (Id. at 30:4--7.) I.S. was "crying hysterically." (Id. at 30:2.)

That night, Omelyan Botsvynyuk forced I.S. into his bed, saying, "you will sleep here." (Id. at 34:13--15.) He told her he wanted her to bear his child. (Id. at 35:4--6.) When she attempted to leave, Defendant repeatedly punched her face so that her "eyes were darkened." (Id. at 35:9--16.) When she screamed, he "shut [her] mouth with a pillow." (Id. at 35:25.) He tore off her clothes and raped her. (Id. 35--36.) Once Defendant had fallen asleep, I.S. snuck from his bedroom to sleep in the living room. As she fell asleep, Defendant again appeared, struck her, and dragged her by her hair back to his bed. (Id. at 36:15--20.) He did not allow her to seek medical attention for the injuries she had suffered during this attack. (Id. at 37:8--11.)

Most of the remaining victims escaped in 2002 and 2003, causing the Organization to cease its United States cleaning operations a short time later. (E.g. Doc. Nos. 200 at 108:7--12; 202 at 62:21--23.) Stepan remained in the United States-where he was arrested. Yaroslav and Mykhaylo eventually settled in Canada. Defendant's wife testified at trial that Omelyan continued to run a car sale business in the United States until 2006, when he sought to move it to Germany, where he was subsequently arrested. (Doc. No. 208 at 12:5--11.) Until at least 2007, Omelyan Botsvynyuk continued to contact victims' families in Ukraine, by telephone and in person, threatening them with violence ...


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