Done Legally, Good Help Can be Hard to Find

Good help can be hard to find. And maybe less of a chore if you’re willing to cut corners.

Following a months-long investigation into hiring practices at Waste Management of Texas, Inc. (WM), federal prosecutors charged Israel A. Martinez and several co-defendants with immigration crimes stemming from their recruitment and placing of undocumented immigrants. In a superseding indictment, Martinez faced several additional charges relating to identity theft in the same underlying scheme.  

After a nine-day jury trial in federal district court, Martinez was convicted on all counts and sentenced to imprisonment for 87 months and three years of supervised release. On appeal, he challenged the sufficiency of the evidence presented against him. Upholding his conviction and sentence, the U.S. Court of Appeals for the Fifth Circuit found ample support in the court record for the verdict.

WM maintains a facility on Afton Road in Houston, where employees are engaged as drivers, helpers, route managers, technicians, welders, hazardous material experts and landfill gas operators. Martinez worked as WM’s residential operations lead driver for several years preceding the events leading to his downfall.

The company engaged Associated Marine and Industrial Staffing Company (AMI), a staffing and payroll services company to provide part-time workers. Mary Louise Flores and Fernando Emmanuel Bustos were onsite supervisors for AMI at the Afton facility. Flores began working there in 2011, and she held that position for 11 months.

Applicants seeking employment at WM would submit, through AMI, their applications, including an identification or resident card and a Social Security card. AMI was responsible for verifying employment eligibility through the Department of Homeland Security's internet-based E-Verify Program. Using information on a prospective employee's program form (I-9), an employer can determine the eligibility of an individual to work in the United States. In addition, AMI was required to validate identity documentation provided by prospective employees.

Several illegally hired helpers testified that they had used fake documents purchased at flea markets to gain employment at WM through AMI. When WM began suspecting helpers to likely be undocumented immigrants, it directed a contractor to examine and audit AMI's employee records. Sure enough, the contractor confirmed that many of the helpers procured by AMI were working illegally. Flores was instructed to fire all of the undocumented aliens staffed by AMI and working for the company.                                                                                

When Flores notified Cesar Arroyo Santiago, WM's district operations manager, about what she was directed to do, he hesitated after realizing that the company would be losing competent employees. Thereafter, Flores discussed "cleaning house" with Martinez on several occasions, and he responded that it would be difficult to find the right people for the job. Nonetheless, AMI and WM did begin firing undocumented or illegally documented employees.

During a staff safety meeting in January 2012, Santiago announced to employees that their employment documents would be checked and, if found invalid, they would be terminated. Santiago and Flores, along with Martinez and his supervisor Rudy Martinez (no relation), were present at the meeting. Both Flores and Santiago encouraged the helpers to find valid identification and Social Security numbers and return to WM. For his part, Martinez said nothing at the meeting. Some 45 WM employees without valid employment documents were fired after the meeting, but Flores and Santiago told them that they could return to work if they brought valid documents—even if they belonged to another person.

Shortly thereafter, Flores and Martinez discussed how illegally employed helpers could continue working. According to Flores’ testimony, Martinez proposed that they assign the identities of former applicants and employees to the illegal helpers. He later gathered and turned over past driver logs with the names of former helpers. Flores reviewed these records to confirm whether the former workers were still active in the AMI system. If so, no further documentation would be needed. Martinez and Flores took the idea to Santiago, who agreed to go along with the plan.

Over several months, Flores, Santiago and Martinez identified former helpers, reactivated them in AMI's employment system and assigned their identities to illegal helpers. Martinez even told a rehired helper to call other fired helpers and advise them to return to WM, assuring that he would help them obtain new identities.

As the evidence showed, approximately 25 illegal aliens procured identification documents of other persons and, with the knowledge of Martinez, Flores, Rudy and Santiago, returned to work under different names. These fired and rehired helpers were required to sign and cash their paychecks under their new names. A number of these rehired helpers came forward to testify and their stories were similar. Martinez would tell them to contact Flores about getting their jobs back. They were rehired under new names and, in fact, Martinez thereafter called them by their new names.

Other WM employees testified about the scheme. Rose Schuler, a driver, told the jury that she personally saw several fired helpers return to work and that Martinez directed her to call them by different names. She also testified that Martinez suggested the helpers find people who were not using their Social Security numbers, such as individuals who were in jail. Teri Minarcik, a residential route manager, testified that several long-time helpers suddenly disappeared but later returned to work with new names.

Special Agent Eleazar Paredes, a member of the federal Immigration and Customs Enforcement Worksite Enforcement Group, testified that his investigation began after he received a tip that WM was employing illegal immigrants. He initially spoke with illegal helpers who were dissatisfied with working conditions at WM and were worried they would lose their jobs if they did not obtain new identities. At the trial, Paredes identified several illegal helpers recruited by AMI and WM whom he had interviewed and who had told him that they were encouraged to return to work if they were able to get valid Social Security cards.

Armed with a search warrant, federal agents in April 2012 entered the Afton facility, where they found and arrested 16 illegal employees. Over the next several months, agents debriefed more than a dozen individuals, later witnesses, who had illegally worked for AMI at WM. These workers told the agents that, although Martinez knew they were illegally employed, he and others repeatedly told them to obtain new, valid employment documents. In addition, three individuals whose identities were used by illegal helpers testified that they did not authorize anyone to use their personal information.

On appeal, Martinez insisted that no reasonable juror could conclude that the crimes for which he was charged were proved beyond a reasonable doubt. The appellate panel was not persuaded: “Martinez's arguments are . . . meritless and contrary to the evidence presented at trial,” the judges said.

“[T]he evidence mounted against Martinez . . . directly implicates him as an active participant in the conspiracy,” the panel noted. “Flores and Santiago both testified . . . that Martinez proposed the plan to rehire the then-recently fired helpers and to assign to them the identities of former helpers and applicants. Flores also testified that Martinez supplied her with identities to reassign and worked closely with her to implement the plan of rehiring illegal helpers. Once the plan was underway, Flores testified that Martinez helped her keep the new identities of the rehired helpers straight and referred to the helpers by their newly assigned identities.”

Taken together, all the testimony “more than adequately incriminates Martinez as having knowledge of and being an active, willing participant in the conspiracy to rehire illegal helpers,” said the opinion. “Flores's and Santiago's testimony about Martinez's participation in the conspiracy demonstrates Martinez's willing cooperation in advancing the scheme and its underlying objective of rehiring a formerly illegally employed workforce,” the opinion continued. “Martinez knew that each of the individuals he encouraged to secure valid identification documents were illegal aliens; this fact was not only ‘common knowledge’ but was also the driving force behind the creation and execution of the scheme.”

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Notably, Waste Management of Texas itself was not charged. After the decision, the company issued a statement that read, in part, as follows:

“When we were alerted in 2012 to the actions by three of our employees and a temporary staffing agency, we conducted an internal investigation and fully cooperated with the government and law enforcement.”  *  *  *   “There is now an enhanced compliance program in place designed to uncover undocumented workers who seek to be involved in our operations . . . .”

United States v. Martinez, No. 17-20230, 5th Cir., August 21, 2018

Barry Shanoff is a Bethesda, Md., attorney and general counsel of the Solid Waste Association of North America.