USA v. Mabelle Dann

Filing

FILED OPINION (BETTY BINNS FLETCHER, SIDNEY R. THOMAS and NANCY GERTNER) AFFIRMED IN PART; REVERSED IN PART. Judge: NG Authoring. FILED AND ENTERED JUDGMENT. [7829416]

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FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
MABELLE DE LA ROSA DANN,
Defendant-Appellant.





No. 10-10191
D.C. No.
08-390-CW
OPINION

Appeal from the United States District Court
for the Northern District of California
Claudia Wilken, District Judge, Presiding
Argued and Submitted
May 9, 2011—San Francisco, California
Filed July 22, 2011
Before: Betty B. Fletcher and Sidney R. Thomas,
Circuit Judges, and Nancy Gertner, District Judge.*
Opinion by Judge Gertner

*The Honorable Nancy Gertner, United States District Judge for the
District of Massachusetts, sitting by designation.

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UNITED STATES v. DANN

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COUNSEL
Barry J. Portman, Federal Public Defender, and Jerome E.
Matthews, Assistant Federal Public Defender, Oakland,California, for the defendant-appellant.
Thomas E. Perez, Assistant Attorney General, Civil Rights
Division Melinda Haag, United States Attorney, Barbara J.
Valliere, Chief, Appellate Section, and Assistant United

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UNITED STATES v. DANN

States Attorney, Merry Jean Chan, Assistant United States
Attorney, San Francisco, California, for the plaintiff-appellee.

OPINION
GERTNER, District Judge:
Mabelle de la Rosa Dann (“Dann”) was charged with conspiracy to commit visa fraud (count one), visa fraud (count
two), forced labor (count three), unlawful conduct regarding
documents in furtherance of servitude (count four),1 and harboring an illegal alien for the purpose of private financial gain
(count five). All charges arose out of conduct involving her
live-in nanny and housekeeper, Zoraida Peña Canal (“Peña
Canal”).
Dann, an American citizen of Peruvian descent, arranged
for Peña Canal to travel from her native Peru to the United
States in 2006 and enter under a fraudulently-obtained visa to
serve as a nanny and housekeeper. Dann was going through
a divorce at the time, was unemployed, and was not receiving
child support. Once Peña Canal arrived, Dann kept her passport, forbade her from speaking with anyone outside the
home, and failed to pay her for two years, although she often
promised that she would. She repeatedly threatened to send
Peña Canal back to Peru; and yet when Peña Canal agreed to
go home, Dann told her that she would owe her $8,000
because she had only worked off $7,000 of the $15,000 worth
of “expenses” that Dann had paid on her behalf. Dann eventually asked Peña Canal to sign a false statement that she had
been paid minimum wage. This statement, along with Peña
Canal’s passport and Peruvian identification, were later found
by U.S. Immigration and Customs Enforcement (“ICE”)
agents underneath clothes in a drawer in Dann’s room.
1

The parties refer to this charge as “document servitude.”

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Dann was convicted after a jury trial on all five counts and
sentenced to 60 months’ imprisonment. The district court
ordered that she pay restitution to Peña Canal of $123,740.34.
And because the court found that Peña Canal (who was living
in a shelter) needed money immediately, the court ordered
Dann to turn over any accrued child support payments that
she received from her ex-husband while incarcerated directly
to Peña Canal. Dann’s children were eligible for child support. Her eldest son is now sixteen, and her twins are ten years
old.
Dann appeals her convictions for forced labor as well as for
the related offenses of document servitude and harboring an
alien for financial gain. She also appeals three sentencing
enhancements under the United States Sentencing Guidelines
(“U.S.S.G.”) and the district court’s restitution order.
As we explain below, we affirm the convictions on all
counts as supported by sufficient evidence. With respect to
sentencing, we decline to reach the merits of the first
enhancement for visa fraud because it does not affect the
guidelines offense level; we affirm the second enhancement
for holding Dann in forced labor for over one year; and we
affirm the third enhancement for committing a felony “in connection with” forced labor.
Finally, we reverse the district court’s restitution order.
This case raises a question of first impression: whether child
support arrearages belong to a criminal defendant such that
they may be assigned to a victim by a restitution order while
the defendant’s children are still minors. Upon review of California case law, we conclude that the minor child is the real
party in interest to accrued child support. Until the child
reaches the age of majority, the parent remains a conduit of
the support and may distribute it for his benefit. Thus, any
money that Dann receives for child support does not belong
to her but rather to her children; it cannot be assigned to Peña
Canal.

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BACKGROUND
I.

Factual Background

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 Peña Canal the opportunity to come to the United States, and she treated her as a
family member. Dann took care of, housed, and fed Peña
Canal, and wanted to pay her as soon as she had the chance.
Dann hoped to give Peña Canal a room of her own but was
unable to do so. The two women had their fights, as all family
members do. After Peña 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.2 Peña 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 Peña Canal
could work for her. She needed cheap — or free — labor, and
this was her means of procuring it. Her behavior towards Peña
Canal became worse and worse over time, culminating in
Peña Canal’s working without pay in slave-like conditions,
fearful of what would happen if she were to leave.
Since Dann was convicted, however, the two narratives are
not on equal footing. The Court is to construe all facts in
favor of the verdict. The facts below are therefore presented
in the light most favorable to the prosecution. Jackson v. Virginia, 443 U.S. 307, 319 (1979).
2

For a T-Visa to be issued pursuant to 8 U.S.C. § 1101(a)(15)(T)(i)(I),
agents or prosecutors have to submit a letter to Immigration Services certifying that the visa applicant has been the victim of a “severe form of trafficking in persons,” and the visa applicant must also cooperate in the
prosecution of the trafficker.

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1.

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Dann Brings Peña Canal to the United States

Dann is a naturalized American citizen of Peruvian descent
who graduated from U.C. Berkeley’s Business School. She
first met Peña Canal during a brief visit to Peru in March of
2002, when Peña Canal was working as a nanny for Dann’s
sister. Dann suggested that Peña Canal come to the United
States to nanny for her family instead.
Dann returned to Peru a few months later and hired Peña
Canal to take care of her twin baby boys during the trip.
Again she spoke of taking Peña Canal to the United States.
She promised Peña Canal the opportunity to study English
and a salary that would increase from $300 to $600 per
month. At trial, Peña Canal testified that even at that time,
Dann spoke about deductions, calculations, and costs, such as
the cost of a visa and the cost of housing in the United States.
Dann and Peña Canal went about the process of applying
for a visa. Dann filled out the papers for Peña Canal and told
her to pretend that she was a tourist going to the United States
for vacation. Dann told her that it would be more believable
if Peña Canal said that she had a daughter in Peru or a mother
who was sick, and so on her first application, Peña Canal
stated that she had a four-year-old daughter and presented a
false birth certificate as proof. That application was denied.
Dann filled out a second application, this time stating that
she and Peña Canal, along with the twins, would go to the
United States for Thanksgiving and then return. This time
Peña Canal was granted an interview at the U.S. Consulate,
but this application was also denied. Dann returned to the
United States in November of 2002 but vowed to send for
Peña Canal, even if it meant smuggling her with “coyotes”
through Mexico.
During the following two years, Dann tried to help Peña
Canal come to the United States on three occasions. Dann was
going through a divorce, and in 2004 she wrote to Peña Canal:

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Dear Zoraida,
I hope you are well. Here, I’m trying to do everything possible to get ahead all alone and with the
responsibility of three children. As you probably
know, my divorce will be finalized very soon. Now,
the judge has ordered that I must go out and work.
And I need more help than ever . . . I’m going to try
and see how to bring you over here. As you probably
know, a man that my brother is acquainted with is
going to get in touch with you very soon and will try
to bring you. Don’t tell anyone from your family
....
Finally, in December 2004, Dann arranged for Peña Canal
to contact Dann’s friend, Silvana de la Rosa (“Silvana”).
Dann and Silvana entered into a contract to bring Peña Canal
to the United States. Silvana would pretend that she was so
frail from cancer that she needed an assistant, Peña Canal, to
travel with her. Dann hired a consultant to teach Peña Canal
how to lie to immigration officials, with whom Peña Canal
met regularly over a period of several months before her interview at the consulate. Peña Canal was granted a tourist visa
and entered the United States on July 27, 2006.
At this point, Dann was unemployed and receiving no child
support. She and her three children were living with her
mother.
2.

Work Conditions with Dann

When Peña Canal arrived in the United States, she moved
in with Dann and Dann’s three boys at Dann’s mother’s
house. The house was cramped, and Peña Canal slept on the
floor. Dann promised that they would be there for only a few
days, and then they would move to a bigger apartment where
they would have more privacy. Around this time, Dann took
Peña Canal’s passport for safe-keeping, since Peña Canal did

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not have any private or secure space of her own. When
Silvana left the country, Dann tore up Peña Canal’s return
ticket to Peru along with the contract to bring Peña Canal to
the United States.
Eventually, in late September of 2006, Dann, her three children, and Peña Canal moved out of Dann’s mother’s house
and into a two-bedroom apartment. Here again, Peña Canal
did not have a room of her own. She slept on the floor in the
corner of the living room. Dann began working as a real estate
agent but funds were tight. She promised Peña Canal that she
would pay her as soon as she got on her feet. Dann, however,
never paid Peña Canal.
Peña Canal’s workday began at 6:00 a.m. when she made
breakfast for Dann and the boys. Once the boys were off to
school, she had until noon to clean the apartment, do laundry
and ironing, and prepare lunch. At about 12:30 p.m., she
walked thirty minutes to the twins’ school to pick them up.
She would feed them lunch and then supervise their homework until the elder son came home. She would take the children out to play, feed them dinner at 6:00 p.m., and then get
them ready for bed at 8:00 p.m. After the children were
asleep, she would tidy the house before retiring at about 10:00
p.m.
The conditions — and the relationship — worsened over
time. In January of 2007, Dann forbade Peña Canal from leaving the apartment without permission. When Dann’s friends
came over, she made Peña Canal hide in the gym of the apartment complex. She told Peña Canal not to talk to anyone
because she did not want Peña Canal to tell “anybody about
the things here at home.” At trial, the property manager of
Dann’s apartment complex testified that Dann told him to
order Spanish-speaking personnel not to speak with Peña
Canal.
Sometime in the winter of 2007, Dann began restricting
Peña Canal’s food intake. Dann forbade Peña Canal from eat-

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ing fruit or drinking tea without permission. Eventually, Dann
began weighing the meat and counting eggs and bread to
make sure Peña Canal was not eating more than her ration.
By February 2007 — seven months after Peña Canal’s
arrival in the United States — Dann still had not paid Peña
Canal. At that time, Dann told Peña Canal:
You shouldn’t — you shouldn’t think that I’m treating you like a slave, you shouldn’t think that I’m
treating you like a slave. I’m going to pay you. I
don’t want for you to leave me because I don’t know
what would happen to my children. Where would I
keep them? The government would take them from
me.
Dann continued to promise to pay Peña Canal. In March of
2007, she opened a bank account for Peña Canal (falsely
informing the bank that Peña Canal worked for Whole
Foods). Dann kept the bank documents; the personal checks
issued to the account were later found in her possession.
In January 2008, the two women had a heated argument
because Dann thought that Peña Canal had spoken to her
son’s trombone teacher without permission. Dann said, “I told
you not to talk to anybody. Why did you go and talk to the
teacher? Did you want to practice your English?” She threatened to send Peña Canal back to Peru. She said, “I’m giving
you a chance to be here in this country. I’m going to buy your
ticket right now. But first, I’m going to figure out our
accounts.” Dann concluded that Peña Canal owed a total of
$15,000, of which she had worked off only $7,000.
Dann falsely accused Peña Canal of stealing from her on at
least four occasions. The last of these, on March 1, 2008,
resulted in another argument. This time, Peña Canal stood up
to Dann and said,

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You know what? If I’m here in the United States, [it]
is so that I can make as much as a dollar even honestly. Even if it’s cleaning bathrooms, but honest
money. I’ve never taken anybody’s money in Peru
and even less here. . . . If you think that I’m stealing
from you, call the police. Call the police.
Peña Canal went into the bathroom to wash her face, and
Dann followed her in and turned off the light. Dann then
grabbed Peña Canal by the neck, called her names, and said
she was going to send her back to Peru. When Peña Canal
answered that she actually wanted to go home, Dann
reminded her of all the clothes that Dann had purchased for
her.
Dann continued to insult Peña Canal often, calling her “little girl” and “shit.” On March 27, 2008, Peña Canal told Dann
to replace a radio she had broken, and Dann said, “You’re
talking to me about rights. What rights do you have in the
United States? . . . You’re a peasant. I’m giving you an opportunity here in this country.” Peña Canal replied, “You’re treating me like a slave. You’re not paying me. You’re not paying
me. And besides that, you broke my radio.” Dann countered,
“This is my house. In my house, I can do whatever I want.”
A few days later, Dann told her mother — in front of Peña
Canal — that Peña Canal had no rights “since here in the
United States, the illegal people don’t even have as much as
Medi-Cal. They die here.” Then Dann ordered Peña Canal to
sign a letter that stated that Dann had paid her minimum wage
in California. The agreement stated in full:
I, Zoraida Peña, have received from Ms. Mabelle
Dann the minimum wage in the State of California
starting on July 27th, 2007, for the care of her children [names omitted] home from school at 2:30 to
6:00 p.m.. In addition, I receive lodging. I occupy
the entire living room for a value of $500 in rent.

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And food, breakfast, lunch, food [sic] and dinner
every day.
In addition to this, I have received some clothes
items and gifts from members of Mabelle’s family.
Perfumes, clothes items, shoes, jackets, pants, et
cetera. I have received a yearly total of $10,200.
Peña Canal testified that she signed the letter, knowing that its
contents were false.
At trial, the prosecutor asked Peña Canal why she had
stayed with Dann; Peña Canal answered: (i) she didn’t trust
anybody and had nowhere to go; (ii) Dann had her passport;
(iii) Dann was making false accusations against her that she
was taking her money; and (iv) the children were her responsibility.
3.

Peña Canal’s Departure

Peña Canal had made friends at the twins’ school when she
went to pick them up. Although she did not speak English,
there were a few Spanish-speakers at the school, including the
school custodian, Anselma Soto (“Soto”). Peña Canal told
him about her working conditions, that she had not been paid,
and that she was not allowed to talk to anyone. Eventually
Peña Canal began keeping some of her belongings with Soto
in an envelope at the school. She also became friends with a
gardener, Miguel Lopez (“Lopez”). She told him that she was
afraid to leave work because Dann “was accusing her, saying
that she was going to report her to immigration, that she was
illegal and that she couldn’t be in this country.” Another
mother at the school, Amy Oz (“Oz”) began giving Peña
Canal rides to and from school. She spoke a little Spanish,
and Peña Canal told her that she would get in trouble if she
was found talking with her. In March of 2008, Oz contacted
La Raza Centro Legal, an organization that assists domestic
workers, on Peña Canal’s behalf.

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Soto, Lopez, and Oz helped Peña Canal leave on April 16,
2008. Peña Canal dropped the children off at the school. She
then went through the school kitchen and hid in a car that was
driven to a safe house. Oz was responsible for calling Dann
to tell her that she would need to pick up her children herself
and that she should pick up a letter from Peña Canal at the
school. The letter contained keys to Dann’s apartment and
asked Dann to return Peña Canal’s passport and Peruvian
identification.
When Dann got to the school and read the letter, she
became hysterical. She said that Peña Canal had taken everything — she had emptied Dann’s house, taken the keys, all
her jewelry and all her money. Dann later told Oz that Peña
Canal had been a terrible nanny who had stolen her jewelry.
On April 21, 2008, Dann e-mailed her sister and said,
“Zoraida escaped, got away, left. But at least she was here for
two years. But I realized from the day she got here that she
wanted to look for another job.”
Meanwhile, Peña Canal met with a lawyer from La Raza
Centro Legal, the immigration advocacy group with whom Oz
had spoken on her behalf. She had told Oz that she wanted to
stay in the United States. La Raza contacted ICE and reported
Peña Canal’s situation. Upon ICE’s recommendation, Peña
Canal was granted a T-Visa pursuant to 8 U.S.C.
§ 1101(a)(15)(T)(i)(I) (requiring that the victim cooperate in
the prosecution of the trafficker).
Peña Canal also filed a civil suit against Dann and her
mother, Vittett, seeking civil, punitive and other damages.
Peña Canal was granted a default judgment and $612,812.82
in compensatory and punitive damages. Canal v. Dann, No.
09-03366CW, 2010 WL 3491136, at *4 (N.D. Cal. Sept. 2,
2010).
4.

Passport and Identification Papers

Dann never returned Peña Canal’s passport or Peruvian
identification. A police officer testified that he went to the

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apartment on Peña Canal’s behalf to ask for these papers.
Dann was not present but called him back later. She denied
having any documents, denied knowing what he was talking
about, and denied having any property that belonged to Peña
Canal.
In June of 2008, ICE agents searched Dann’s apartment.
They found Peña Canal’s passport, her Peruvian identification
card, and checks for a bank account in her name, along with
the agreement that Dann had forced her to sign about minimum wage, all buried under clothing in a drawer in Dann’s
room.
II.

Procedural Background

On June 5, 2008, Dann was charged in a one-count indictment with harboring an illegal alien for purpose of private
financial gain, in violation of 8 U.S.C. § 1324(a)(1)(A)(iii)
and (B)(i). On February 4, 2009, the government filed a
superceding indictment, charging Dann with five counts: (i)
conspiracy to commit visa fraud in violation of 18 U.S.C.
§§ 371 and 1546(a); (ii) visa fraud in violation of 18 U.S.C.
§ 1546(a); (iii) forced labor and attempted forced labor in violation of 18 U.S.C. §§ 1589 and 1594; (iv) document servitude in violation of 18 U.S.C. § 1592; and (v) harboring an
illegal alien for private financial gain in violation of 8 U.S.C.
§§ 1324(a)(1)(A)(iii) and (B)(i).
After a jury trial, Dann was convicted on all five counts.
During deliberations, the jury asked four questions. One question was about visa fraud. The other questions were about the
forced labor charge.
The district court instructed the jury that forced labor has
three elements: (1) that Dann obtained or attempted to obtain
the labor or services of Peña Canal; (2) by means of a scheme,
plan or pattern intended to cause Peña Canal to believe that,
if she did not perform such labor or services, she or another

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person would suffer serious harm; and (3) that Dann acted
knowingly. The jury asked, “Must the charge of forced labor
apply to the entire duration of Ms. Peña Canal’s service, or
can it be applied only to a portion of the time?” The district
court answered, “It need not apply to the entire duration of
Peña Canal’s service. It could be applied to only a portion of
the time.”
The jury also asked, “Is the duration of time relevant to
determining serious harm?” The district court answered,
“Yes, the duration of time is relevant. A harm that might be
serious if it happened for only a short — that might not be
serious if it happened for a short time might be serious if it
went on for a very long time.” Shortly after this instruction,
the jury returned with a unanimous verdict of guilty on all
five counts.
On October 15, 2009, Dann filed a motion for judgment of
acquittal and/or motion for new trial. Dann had also made an
oral motion for a judgment of acquittal after the government
rested and at the close of all the evidence. The district court
denied these motions in a written order on December 23,
2009. United States v. Dann, No. 08-00390, 2009 WL
5062345 (N.D. Cal. Dec. 23, 2009).
On April 14, 2010, the district court sentenced Dann to 60
months on each count, to run concurrently. The court also
ordered restitution in the amount of $123,740.34, payable to
Peña Canal. As part of this restitution, the district court
ordered that any accrued child support payable to Dann while
she is incarcerated be paid directly to Peña Canal.
Dann filed a notice of appeal on April 22, 2010. On April
28, 2010, she filed a motion under Federal Rule of Criminal
Procedure 35(a) to correct the sentence on the grounds that
the district court erred when it ordered accrued child support
to be paid to the victim. The district court denied this motion

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on July 22, 2010. United States v. Dann, No. 08-00390, 2010
WL 2891585 (N.D. Cal. July 22, 2010).
Dann appeals her conviction and sentence. We address
each in turn below.
CONVICTION
I.

Standard of Review

Dann argues on appeal that there was insufficient evidence
to support her conviction for forced labor, document servitude, and harboring an illegal alien for financial gain. The
Court reviews the district court’s denial of a motion for
acquittal de novo. See, e.g., United States v. Carranza, 289
F.3d 634, 641 (9th Cir. 2002).
The Court asks whether, “[a]fter viewing the evidence in
the light most favorable to the prosecution, any rational trier
of fact could have found the essential elements of the crime
beyond a reasonable doubt.” Jackson, 443 U.S. at 319. The
analysis requires two steps: First, the court reviews the evidence presented at trial in the light most favorable to the prosecution; then, the court determines whether the evidence, so
construed, would allow any rational trier of fact to find the
defendant guilty of the crime beyond a reasonable doubt. See,
e.g., United States v. Nevils, 598 F.3d 1158, 1164 (9th Cir.
2010) (en banc). The Nevils court cautioned:
This means that a court of appeals may not usurp the
role of the finder of fact by considering how it would
have resolved the conflicts, made the inferences, or
considered the evidence at trial. Rather, when faced
with a record of historical facts that supports conflicting inferences a reviewing court must presume
— even if it does not affirmatively appear in the
record — that the trier of fact resolved any such con-

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flicts in favor of the prosecution, and must defer to
that resolution.
Id. (quotation marks and citations omitted).
Nevertheless, Dann will prevail if, once all of the evidence
has been construed in favor of the government, the evidence
is still “so supportive of innocence that no rational juror could
conclude that the government proved its case beyond a reasonable doubt.” Id. at 1167.
II.

Discussion

Dann argues that the evidence was insufficient to support
a conviction for three of the five crimes for which she was
convicted: forced labor, document servitude, and alien harboring for financial gain. We consider each in turn.
A.

Forced Labor

First, Dann argues that she should be acquitted of forced
labor because there was insufficient evidence that she
intended to threaten serious harm.
The federal forced labor statute, 18 U.S.C. § 1589(a), provides:
(a) Whoever knowingly provides or obtains the labor
or services of a person by any one of, or by any combination of, the following means—
(1) by means of force, threats of force,
physical restraint, or threats of physical
restraint to that person or another person;
(2) by means of serious harm or threats of
serious harm to that person or another person;

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(3) by means of the abuse or threatened
abuse of law or legal process;
or
(4) by means of any scheme, plan, or pattern intended to cause the person to believe
that, if that person did not perform such
labor or services, that person or another
person would suffer serious harm or physical restraint,
shall be punished as provided under subsection(d).
The government limited this case to the fourth means of
violating the forced labor statute, and the court instructed:
If you find that Dann obtained the labor or services
of Peña Canal, then you must determine whether she
did so by means of a scheme, plan, or pattern
intended to cause Peña Canal to believe that, if she
did not perform such labor or services, she or
another person would suffer serious harm.
The court then defined serious harm exactly as described in
the statute, which includes “physical or nonphysical” harm,
“including psychological, financial or reputational harm.” 18
U.S.C. § 1589(c)(2). The jury convicted on this count.
Dann does not challenge the instruction. Rather she argues
that her relationship with Peña Canal does not fit within the
forced labor statute and that the evidence presented was insufficient to support the conviction as a matter of law.
1.

Serious Harm Under § 1589

The acts proved by the government in this case are well
within the scope of the Victims of Trafficking and Violence

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Protection Act of 2000. Pub. L. No. 106-386, 114 Stat. 1464.
Legislative history suggests that Congress passed this act to
correct what they viewed as the Supreme Court’s mistaken
holding in United States v. Kozminski, 487 U.S. 931 (1988).
Kozminski limited the definition of involuntary servitude to
“physical” or “legal” coercion. Id. at 952. In § 1589, Congress
intended to “reach cases in which persons are held in a condition of servitude through nonviolent coercion.” Victims of
Trafficking and Violence Protection Act of 2000
§ 102(b)(13).
[1] Congress concluded that the means used by modernday traffickers are “increasingly subtle.” H.R. Rep. No. 106939, at 101 (2000) (Conf. Rep.), 2000 WL 1479163, at *91.
And therefore § 1589 defines harm broadly as:
any harm, whether physical or nonphysical, including psychological, financial, or reputational harm,
that is sufficiently serious, under all the surrounding
circumstances, to compel a reasonable person of the
same background and in the same circumstances to
perform or to continue performing labor or services
in order to avoid incurring that harm.
18 U.S.C. § 1589(c)(2). In other words, someone is guilty of
forced labor if he intends to cause a person in his employ to
believe that if she does not continue to work, she will suffer
the type of serious harm — physical or nonphysical, including
psychological, financial, reputation harm — that would compel someone in her circumstances to continue working to
avoid that harm. See, e.g., United States v. Calimlim, 538 F.3d
706, 712, 714 (7th Cir. 2008) (finding threat to stop paying
victim’s poor family members constitutes serious harm).
To be sure, not all bad employer-employee relationships or
even bad employer-immigrant nanny relationships will constitute forced labor. First, the threat of harm must be serious.
Congress intended to address serious trafficking, or cases

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“where traffickers threaten harm to third persons, restrain
their victims without physical violence or injury, or threaten
dire consequences by means other than overt violence.” H.R.
Rep. No. 106-939, at 101 (Conf. Rep.). According to the statute, the threat, considered from the vantage point of a reasonable person in the place of the victim, must be “sufficiently
serious” to compel that person to remain. See 18 U.S.C.
§ 1589(c)(2).
Second, the scope of the statute is narrowed by the requirement of scienter. Calimlim, 538 F.3d at 711-12. The jury must
find that the employer intended to cause the victim to believe
that she would suffer serious harm — from the vantage point
of the victim — if she did not continue to work. While the
serious harm need not be effectuated at the defendant’s hand,
the statute “requires that the plan be intended to cause the victim to believe that that harm will befall her.” Id. (internal quotation marks and punctuation omitted). The linchpin of the
serious harm analysis under § 1589 is not just that serious
harm was threatened but that the employer intended the victim to believe that such harm would befall her.
2.

Evidence of Intent

Here, Dann argues that there was insufficient evidence that
she intended to make Peña Canal believe that she would suffer serious harm if she were to stop working for Dann. The
government counters that the evidence supports Dann’s intent
to have Peña Canal believe: (i) that she would not be paid
back wages for close to two years of work and in fact would
owe Dann $8,000 for expenses already paid; (ii) that Dann
would falsely accuse her of wrongdoing and cause reputational harm; (iii) that Peña Canal would suffer immigration
consequences because she would either not be able to leave
the country at all (since Dann held her passport and papers)
or she would be sent back to Peru and would not have the

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opportunity to study in the United States; and (iv) that the
children for whom she cared would be taken from their mother.3
While we consider each of these harms separately below,
we are to ask whether, from the vantage point of an immigrant
in Peña Canal’s position, these harms — taken together —
were sufficiently serious so as to compel her to remain in
Dann’s employ.
a.

Financial Harm

First, Dann argues that there was insufficient evidence that
Dann intended Peña Canal to believe that she would suffer
serious financial harm if she were to leave. Dann points out
that Peña Canal never testified that Dann told her that she
would not be paid back wages. That may well be true, but the
inference was clear. Dann told Peña Canal that she would owe
money if she left. After one argument, Dann said, “I’m giving
3

Dann suggests on appeal that the government has waived its right to
argue as to these last two harms because the government focused primarily
on financial and reputational harm at trial and in response to the defendant’s post-trial Rule 25(a) motion. See McCormick v. United States, 500
U.S. 257, 270 n.8 (1991) (“This Court has never held that the right to a
jury trial is satisfied when an appellate court retries a case on appeal under
different instructions and on a different theory than was ever presented to
the jury. Appellate courts are not permitted to affirm convictions on any
theory they please simply because the facts necessary to support the theory
were presented to the jury.”).
In this case, however, the jury was instructed clearly on the broad definition of “serious harm.” At this stage in the litigation, we are to ask
whether the evidence produced at trial was sufficient for any reasonable
juror to convict according to the instructions that he was given. While the
government focused on reputational and financial harm, there was surely
evidence of other harms presented to the jury. And in fact, the jury may
have concluded that the combination of these various harms was sufficiently serious as to compel a reasonable person in the victim’s position
to continue to work. This is not a case where the government suddenly
suggests on appeal an entirely different theory that would have required
different instructions. Cf. id.

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you a chance to be here in this country. I’m going to buy your
ticket right now. But first, I’m going to figure out our
accounts.” And then she concluded that Peña Canal owed her
a total of $15,000, of which only $7,000 had been worked off.
On another occasion, when Peña Canal told Dann to send her
home, Dann began to calculate the cost of clothes that she had
purchased for Peña Canal.
Moreover, as the district court pointed out, Dann made
Peña Canal sign a note stating that she had been paid minimum wage. The district court found this fact persuasive:
The jury could make three reasonable inferences
from this note when considered in conjunction with
Defendant’s false promises to pay Ms. Peña Canal
and the debt Defendant imposed on Ms. Peña Canal:
(1) Defendant had no intention of paying Ms. Peña
Canal, (2) Defendant had a consciousness of guilt for
not paying Ms. Peña Canal so she wanted to preserve
the note to guard against any possible future charges
and (3) Defendant wanted Ms. Peña Canal to be
aware that Defendant would keep this note to deter
her from trying to enforce her rights.
Dann, 2009 WL 5062345, at *2. We agree.
[2] We conclude that there was sufficient evidence for a
reasonable juror to find that Dann intended Peña Canal to
believe that Peña Canal would suffer financial harm and that
that financial harm was “sufficiently serious” within the
meaning of the statute. For an immigrant without access to a
bank account and not a dollar to her name, a juror could conclude that the failure to pay her — and thus the lack of money
to leave or live — was sufficiently serious to compel Peña
Canal to continue working.4
4

Dann argues that the government’s case fails because Peña Canal told
officials that “it wasn’t about the money,” that she didn’t stay for the

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Reputational Harm

[3] Second, Dann argues that there was insufficient evidence that Dann intended that Peña Canal believe that Peña
Canal would suffer reputational harm if she were to leave.
Again, Dann points out that Peña Canal never testified that
Dann told her that she would call Peña Canal a thief if she left
or that Dann would tell people back in Peru that she was
untrustworthy. But here again, we are to draw every inference
in favor of the guilty verdict.
[4] The jury heard evidence that Dann falsely accused
Peña Canal of theft on four occasions. The jury could reasonably conclude that Dann intended Peña Canal to believe that
she would in fact falsely accuse her when she left. And in fact
that fear was realized: When Dann read Peña Canal’s letter,
she told everyone within earshot at the school that Peña Canal
was a thief who had robbed her and taken everything she had.
c.

Immigration Harm

[5] There was also evidence that Dann intended Peña
Canal to fear immigration harm. As the Seventh Circuit articulated in Calimlim, a victim has fewer means of escape where
the threats in her case involve immigration. 538 F.3d at 712
(noting that the immigrant victim “did not have an exit option:
because the threats in her case involved her immigration status, she could not freely work for another employer in order
to escape the threatened harm.”).
[6] While Dann never explicitly threatened deportation,
she did repeatedly threaten to send Peña Canal back to Peru.
money. As we have said, however, the linchpin of this analysis is the
intent of the employer, or in this case what Dann intended Peña Canal to
believe in order to induce her to stay in her employ. And here it is clear
that a reasonable juror could conclude that Dann intended Peña Canal to
believe that she would suffer financial harm if she were to leave.

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That threat alone — to be forced to leave the country — could
constitute serious harm to an immigrant who came to the
United States in part to study English and who dreamed of
starting a business. See United States v. Djoumessi, 538 F.3d
547, 552 (6th Cir. 2008) (noting that the defendant’s threats
to send victim back to Cameroon were coercive in light of the
victim’s special vulnerability as illegal immigrant). Dann also
had custody of Peña Canal’s passport and Peruvian identification; Peña Canal testified that she stayed in part because Dann
held her papers. And in fact, when she did leave, the only
request she made of Dann in her closing letter was the return
of her Peruvian passport and identification.
[7] Thus the evidence, taken in the light most favorable to
the prosecution, suggests that Dann intended to inspire two
related immigration fears in Peña Canal: that she would be
forced to leave the country or that she would not be able to
leave the country because she had no documents. Both threats
are serious, and this exercise of control is further evidence of
scienter. And in fact Dann used the word “escape” to describe
Peña Canal’s eventual departure.5 A juror could reasonably
have concluded that Dann intended to keep Peña Canal in fear
of serious immigration consequences.
d.

Harm to the Children

[8] Finally, there was evidence to suggest that Dann
intended Peña Canal to fear what would happen to the children if she were to leave. Such a fear is squarely within the
intent of Congress, which enacted § 1589 to address “traffickers [who] use more subtle means designed to cause their victims to believe that serious harm will result to themselves or
others if they leave, as when a nanny is led to believe that the
5

Specifically, on April 21, 2008, Dann e-mailed her sister and said,
“Zoraida escaped, got away, left. But at least she was here for two years.
But I realized from the day she got here that she wanted to look for
another job.”

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children in her care will be harmed if she leaves the home.”
H.R. Rep. No. 106-939, at 101 (Conf. Rep.) (emphasis
added).
[9] Peña Canal testified that she did not leave because she
worried about what would happen to the children. In February
of 2007, Dann told her,
You shouldn’t — you shouldn’t think that I’m treating you like a slave, you shouldn’t think that I’m
treating you like a slave. I’m going to pay you. I
don’t want for you to leave me because I don’t know
what would happen to my children. Where would I
keep them? The government would take them from
me.
There are two reasonable interpretations: Dann may have
been apologizing for not paying Peña Canal and pleading with
her to stay so that she would not lose her children. Alternatively, Dann may have been threatening that the children
would suffer if Peña Canal were to leave — exactly the type
of coercion that Congress envisioned. Again, drawing all
inferences in favor of the verdict, we must assume that the
jury came to the latter conclusion. A juror could conclude that
a reasonable person in Peña Canal’s position — that is, a
nanny who had cared for three boys from infancy — would
feel compelled to stay on account of such a threat.
[10] In sum, a reasonable juror could have concluded that
Dann intended to cause Peña Canal to believe that she would
suffer financial, reputational, and immigration harms, as well
as cause harm to Dann’s children. Such a juror could further
conclude that the sum of these threatened harms would have
compelled a reasonable person in Peña Canal’s position to
continue to work for Dann. Having determined that there was
sufficient evidence to support Dann’s conviction for forced
labor, we AFFIRM the district court’s denial of Dann’s Rule
35(a) motion on this ground.

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B.

Document Servitude

[11] Dann also challenges her conviction for document
servitude, which arises out of her forced labor conviction.
Document servitude occurs where a defendant “knowingly . . .
conceals, removes, confiscates, or possesses any actual or
purported passport or other immigration document . . . of
another person . . . in the course of” trafficking, peonage,
slavery, involuntary servitude or forced labor. 18 U.S.C.
§ 1592(a)(1). The district court instructed the jury on the three
elements of this crime as follows:
First, Ms. Dann concealed, removed, confiscated, or
possessed Ms. Peña Canal’s passport or other immigration document or government identification document. Second, such acts were undertaken in the
course of committing or with the intent to commit
the crime of forced labor. Third, that Ms. Dann acted
knowingly in doing such an act or acts.
Dann challenges the second element.
Dann first argues that there was insufficient evidence that
she had any intent to commit forced labor, an argument we
have already rejected. Second, Dann argues that even if she
had the intent to commit forced labor, she did not keep Peña
Canal’s documents in order to commit that offense. She notes
that Peña Canal testified that she gave her documents to Dann
because she did not have any safe place to put them; she did
not testify that she looked for the documents or that she asked
Dann to give them back to her. Indeed, this case stands in
contrast to other document servitude cases where the passports were kept in a locked drawer, or where an employer
confiscated documents upon arrival. See, e.g., United States v.
Sabhnani, 599 F.3d 215, 245 (2d Cir. 2010); United States v.
Farrell, 563 F.3d 364, 376-77 (8th Cir. 2009).
[12] The statute, however, requires merely that the defendant “possess[ ]” the document, not that the defendant lock it

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up. 18 U.S.C. § 1592(a). Here, the jury heard evidence that
when the police asked Dann for the papers on Peña Canal’s
behalf, she claimed that she did not have them. They heard
evidence that the documents were ultimately found alongside
the note about minimum wage, buried under clothes in a
drawer.
Again, there are two stories. Dann may have kept the passport for safe keeping and may have genuinely believed that
she did not have it when the police asked. Alternatively, she
may have hid the passport in a place where Peña Canal likely
would not have found it, along with the false minimum wage
note, in order to prevent Peña Canal from leaving. Construing
all inferences in favor of the verdict, we must assume the latter. A rational juror could have concluded that Dann possessed and concealed Peña Canal’s passport as part of her
plan to cause Peña Canal to believe that she could not leave,
or that she would suffer serious harm if she did.
[13] We conclude that there was sufficient evidence to
support Dann’s conviction for document servitude and
AFFIRM the district court’s denial of Dann’s 35(a) motion on
this ground as well.
C.

Alien Harboring for Financial Gain

Finally, Dann challenges her conviction for alien harboring
for financial gain. The district court instructed the jury that to
convict Dann on this count, it had to find:
First, that Ms. Peña Canal was an alien. Second, Ms.
Peña Canal had come to, entered, or remained
unlawfully in the United States. Third, Ms. Dann
knew or was in reckless disregard of the fact that
Ms. Peña Canal had come to, entered, or remained
unlawfully in the United States. Fourth, Ms. Dann
concealed, harbored, or shielded Ms. Peña Canal for
the purpose of avoiding Ms. Peña Canal’s detection

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by the immigration authorities. And fifth, Ms. Dann
concealed, harbored, or shielded Ms. Peña Canal for
the purpose of private financial gain.
Dann challenges the sufficiency of the evidence on the fourth
element.
As a preliminary matter, the parties disagree as to whether
the government had to prove that Dann harbored Peña Canal
to prevent detection by immigration authorities. The government argues that according to United States v. Acosta de
Evans, harboring does not require that the defendant actively
take steps to hide the alien from immigration authorities; it is
sufficient that the defendant provided the alien with shelter
for financial gain. 531 F.2d 428, 430 (9th Cir. 1976).
[14] Although the government is correct, the jury was
instructed on a different standard: specifically, it was asked
whether “Ms. Dann concealed, harbored, or shielded Ms.
Peña Canal for the purpose of avoiding Ms. Peña Canal’s
detection by the immigration authorities.” To convict Dann,
according to this instruction, the jury had to find that she
expressly shielded her from immigration authorities, not just
that she gave her shelter. Dann argues, and we agree, that this
Court is bound by that instruction. See Chiarella v. United
States, 445 U.S. 222, 236 (1980) (“We cannot affirm a criminal conviction on the basis of a theory not presented to the
jury.”); McCormick, 500 U.S. at 270 n.8.
The district court found, based on this standard, that there
was sufficient evidence for a reasonable juror to conclude that
Dann shielded Peña Canal for the purpose of avoiding detection by immigration authorities. Dann restricted Peña Canal’s
movement and forbade her from speaking to anyone outside
the home. Dann even asked the manager of the apartment
complex to tell the Spanish-speaking staff not to talk to Peña
Canal. Dann repeatedly reminded Peña Canal of her illegal
status and asked if Peña Canal was “scared” when she talked

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to a police officer. Whenever Peña Canal came into the house,
Dann or her mother would ask if she had spoken to anyone.
[15] Dann contends that this story is more consistent with
someone who did not want her good employee to be poached.
That interpretation is plausible, but it is not the only one. The
same evidence suggests that Dann was harboring Peña Canal
from immigration authorities. And that inference is more
plausible given the fact that Dann, herself, was implicated in
the visa fraud.
[16] We conclude therefore that there was sufficient evidence to support Dann’s conviction for alien harboring for
financial gain, and AFFIRM the district court’s denial of
Dann’s Rule 35(a) motion on this final claim.
SENTENCING
In addition to challenging her conviction, Dann challenges
the district court’s sentencing guideline calculation and the
restitution order that required her to sign over to the victim
any payments made by her ex-husband toward accrued child
support.
I.

Standard of Review

This Court reviews “the district court’s interpretation of the
Sentencing Guidelines de novo, the district court’s application
of the Sentencing Guidelines to the facts of a case for abuse
of discretion, and the district court’s factual findings for clear
error.” United States v. Grissom, 525 F.3d 691, 696 (9th Cir.
2008) (internal quotation marks and citation omitted). “A restitution order is reviewed for an abuse of discretion, provided
that it is within the bounds of the statutory framework. Factual findings supporting an order of restitution are reviewed
for clear error. The legality of an order of restitution is
reviewed de novo.” United States v. Foreman, 329 F.3d 1037,

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1039 (9th Cir. 2003) (internal quotation marks and citations
omitted).
II.

Discussion
A.

Guidelines Enhancements

The district court accepted the Guidelines calculation in
Dann’s Pre-Sentence Report (“PSR”), which calculated
Dann’s offense at a base level of 27, her criminal history as
Category I, with the resulting Guidelines prison range of 70
to 87 months. The probation officer recommended, and the
court agreed, to a prison term of 60 months under 18 U.S.C.
§ 3553, based on her behavioral and mental health issues.6
The district court did not comment on the three contested
enhancements to which the defendant objected at sentencing.
Dann argues on appeal that the district court erred in applying the following Guidelines enhancements to her sentence:
for visa fraud, a four-level enhancement for committing visa
fraud with reason to believe that the visa would be used to
facilitate a felony; and for forced labor, a three-level enhancement for holding a victim in document servitude for over a
year and a two-level enhancement for committing a felony
(visa fraud) in connection with forced labor. We consider
each in turn.
1.

Visa Fraud Enhancement

Visa fraud falls under § 2L2.1 of the U.S. Sentencing
Guidelines Manual, which governs “Trafficking in a Document Relating to Naturalization, Citizenship, or Legal Resident Status, or a United States Passport; False Statement in
Respect to the Citizenship or Immigration Status of Another[.]” The base offense level under this Guideline is eleven
6

Notably, on appeal Dann does not challenge the reasonableness of this
sentence of 60 months. She challenges only the Guidelines calculation.

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and includes an enhancement of four levels “[i]f the defendant
knew, believed, or had reason to believe that a passport or
visa was to be used to facilitate the commission of a felony
offense, other than an offense involving violation of the immigration laws.” U.S.S.G. § 2L2.1(b)(3). In the PSR, the probation officer reasoned that “the defendant had reason to believe
that the visa would facilitate her conduct that rose to a felony,
unlawful conduct regarding documents in furtherance of servitude.” Dann argues that the trial court erred in imposing this
enhancement because the crime of document servitude —
identified by the probation officer — is “an offense involving
violation of the immigration laws” and is thus excepted by the
clear language of the Guidelines.
We need not reach this argument. Dann’s base offense level
of 27 was driven by the forced labor offense and not visa
fraud. An enhancement on visa fraud would not affect the
Guideline range, and therefore any error would be harmless.7
Cf. United States v. Munoz-Camarena, 631 F.3d 1028 (9th
Cir. 2011).
2.

Forced Labor Enhancements

[17] Next, Dann challenges the Guideline enhancements to
her base offense level on the forced labor conviction. Sentencing for forced labor is governed by § 2H4.1 of the U.S. Sentencing Guidelines Manual, for “Peonage, Involuntary
Servitude, Slave Trade, and Child Soldiers.” The base level is
22. The offense may be subject to a three-level enhancement
“[i]f any victim was held in a condition of peonage or involuntary servitude for [ ] more than one year,” U.S.S.G.
7

Indeed, it is not clear that the trial court even applied this enhancement.
During the sentencing hearing, the trial judge said, “Your objection had
to do with the visa count and whether the visa offense was in furtherance
of another immigration offense, and that would appear to be a moot point
because the visa offense isn’t the one that’s driving the guideline calculation.”

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§ 2H4.1(b)(3),8 and an additional two-level enhancement “[i]f
any other felony offense was committed during the commission of, or in connection with, the peonage or involuntary servitude offense,” id. § 2H4.1(b)(4). Here, the district court
applied both of these enhancements over Dann’s objections.
This Court reviews a district court’s factual findings in support of a sentencing enhancement for clear error. United
States v. Rivera-Alonzo, 584 F.3d 829, 836 (9th Cir. 2009)
(citation omitted). “Reversal for clear error requires a definite
and firm conviction that the district court made a mistake.”
Rodriguez v. United States, 542 F.3d 704, 711 (9th Cir. 2008)
(internal quotation marks and citation omitted).
a.

More than one year

Dann argues that the evidence before the district court
failed to show that she had held Peña Canal in forced labor
for more than one year, or from at least April 15, 2007 until
her escape on April 16, 2008. She contends that the evidence
supported forced labor for a much shorter period. The government’s closing argument focused on the beginning of 2008
when Dann’s conduct was at its worst. And in fact, the jury
asked whether the charge of forced labor had to apply to the
entire duration of Peña Canal’s service. The question may
suggest that the jury believed that Peña Canal was not subject
to forced labor for the entire time that she resided with Dann.
To be sure, the government’s evidence indicated that the
worst of Dann’s bad behavior occurred in or after January
2008. It was at that time that Dann told Peña Canal that she
owed $15,000. Thereafter, Dann became increasingly controlling and abusive, ultimately physically accosting Peña Canal.
Dann then forced Peña Canal to sign the “agreement” stating
that she had been paid minimum wage.
8

Application Note 1 defines “peonage or involuntary servitude” as
including forced labor. U.S.S.G. § 2H4.1 cmt. n.1.

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Nevertheless, there was sufficient evidence for the trial
judge to find by a preponderance of the evidence that Peña
Canal was subject to forced labor prior to April 2007. She testified that Dann began to restrict her movement by January of
2007 and forbade her from leaving the apartment without her
permission. She told Peña Canal not to “talk to anybody, not
to reveal anything about us, don’t tell anybody anything.”
Dann even told the property manager of the apartment complex to order Spanish-speaking personnel not to talk with
Peña Canal.
Sometime in the winter of 2007, Dann also began restricting Peña Canal’s food intake, forbidding her from eating fruit
and drinking tea without permission and eventually weighing
the meat and counting the eggs and bread. It was in February
of 2007 that Dann told Peña Canal:
You shouldn’t — you shouldn’t think that I’m treating you like a slave, you shouldn’t think that I’m
treating you like a slave. I’m going to pay you. I
don’t want for you to leave me because I don’t know
what would happen to my children. Where would I
keep them? The government would take them from
me.
The district court could have reasonably concluded that Dann
already knew the implications of her conduct with Peña Canal
— that she was in fact treating her like a slave. By April of
2007, Peña Canal had already foregone eight months in
unpaid wages that she risked losing if she were to leave.
[18] We conclude that the district court did not clearly err
when it found that Peña Canal had been held in forced labor
for over one year and therefore AFFIRM the district court’s
Guideline enhancement.
b.

Felony in connection with forced labor

Finally, Dann challenges the sentencing enhancement for
committing another felony “during the commission of, or in

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connection with” forced labor under § 2H4.1(b)(4) of the U.S.
Sentencing Guidelines Manual. The district court adopted the
PSR, which suggested that Dann committed the felony of visa
fraud in connection with the forced labor. Dann argues that at
the time that she committed visa fraud, she had no intention
of committing forced labor. These crimes, she argues, are
entirely unrelated.
[19] Section 2H4.1(b)(4) of the U.S. Sentencing Guidelines Manual provides in full:
If any other felony offense was committed during the
commission of, or in connection with, the peonage or
involuntary servitude offense, increase to the greater
of:
(A) 2 plus the offense level as determined above,
or
(B) 2 plus the offense guideline applicable to that
other offense, but in no event greater than level 43.
The first step in our analysis is to determine what it means to
commit a crime “in connection with” forced labor under
§ 2H4.1(b)(4). This is a matter of first impression, as the commentary in this section does not define the term and no court
has interpreted the language of this enhancement.
There is, however, an analogous provision in the offense
guideline for unlawful possession of a firearm, U.S.S.G.
§ 2K2.1(b)(6):
If the defendant used or possessed any firearm or
ammunition in connection with another felony
offense; or possessed or transferred any firearm or
ammunition with knowledge, intent, or reason to
believe that it would be used or possessed in connection with another felony offense, increase by 4 levels.

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(emphasis added). The commentary of § 2K2.1(b)(6) states
that possession of a firearm “in connection with” another felony applies “if the firearm or ammunition facilitated, or had
the potential of facilitating, another felony offense or another
offense, respectively.” U.S.S.G. § 2K2.1 cmt. 14.
Clearly, the drafters must be held to define terms consistently throughout the Guidelines. Thus “in connection with”
must mean facilitation. In the forced labor context, a felony
is committed “in connection with” forced labor where that
crime facilitates or has the potential of facilitating forced
labor — or conversely where forced labor facilitates or has
the potential of facilitating another felony offense. In this
case, it is clear that the visa fraud facilitated the forced labor.
Indeed, as we have explained, Dann used Peña Canal’s illegal
immigration status to intimidate her, to cause her to fear
deportation or to fear the risk of leaving without documentation. This evidence is sufficient to show that Dann committed
forced labor in connection with visa fraud.
Dann, however, suggests that according to our holding in
United States v. Jimison, “in connection with” requires an
additional element of intent. 493 F.3d 1148, 1149 (9th Cir.
2007). She argues that the enhancement applies only where
the defendant commits the first felony (either forced labor or
the other crime) with the intent to commit the other. This
argument is unavailing. In Jimison, we interpreted the second
half of § 2K2.1(b)(6)— the enhancement that applies where
a defendant “possessed or transferred any firearm or ammunition with knowledge, intent, or reason to believe that it would
be used or possessed in connection with another felony
offense.” U.S.S.G. § 2K2.1(b)(6). We held that, to prove the
application of this enhancement, the government must provide
sufficient evidence that when the defendant came into possession of the firearm, he had a “firm intent” to use it to commit
a felony. Jimison, 493 F.3d at 1149. The intent requirement
was drawn directly from the language of the enhancement
(requiring “knowledge, intent, or reason to believe”). There is

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no comparable intent language in the forced labor Guideline
under U.S.S.G. § 2K2.1, and we cannot read intent into the
provision.
[20] We conclude therefore that a felony is committed “in
connection with” forced labor where it facilitates or is facilitated by the offense of forced labor. And because in this case
visa fraud facilitated Dann’s commission of forced labor, the
district court’s Guideline enhancement is AFFIRMED.
B.

Restitution Order

Finally, we turn to the district court’s restitution order. At
sentencing, the Court ordered Dann to pay $123,740.34 in restitution and required that “any payments made by [Dann’s exhusband] toward back child support that he owes shall be
signed over to the victim as payment towards restitution.”
Dann filed a motion under Federal Rule of Criminal Procedure 35(a) to correct the sentence on the grounds that the district court erred when it ordered accrued child support to be
paid to Peña Canal. The district court denied the Rule 35(a)
motion.9
9

The district court held in relevant part:
Although no authority directly addresses the issue presented in
this motion, case law appears to support the view that child support in the form of arrearages is a debt owed to the children if the
children stand to benefit from the payments. The debt is owed to
the custodial parent when the children will not benefit from the
payment of the arrearages.
Here, Defendant will be incarcerated for a period of years.
Child support arrearages paid to her will not benefit her children
during her period of incarceration. Accordingly, the Court will
not modify its restitution order at this time. If child support
arrearages are received by Defendant at a time when she has custody of the children and needs the arrearages to support them, she
may move for modification of the restitution order, setting out
her financial circumstances and how the money will be used for
the benefit of her children. Similarly, if Defendant receives

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On appeal, Dann argues that the district court erred by
assigning a debt that did not belong to Dann but rather to her
minor children, who are now sixteen, ten, and ten years old
respectively. This Court reviews legal issues regarding a restitution order de novo. Foreman, 329 F.3d at 1039.
[21] The Mandatory Victims Restitution Act requires that
a district court consider three factors before ordering restitution: “(A) the financial resources and other assets of the
defendant, including whether any of these assets are jointly
controlled; (B) projected earnings and other income of the
defendant; and (C) any financial obligations of the defendant;
including obligations to dependents.” 18 U.S.C.
§ 3664(f)(2)(A)-(C). Any restitution order under this section
may be enforced only as against property that is the defendant’s own according to the relevant state law. See, e.g.,
United States v. Berger, 574 F.3d 1202, 1205 (9th Cir. 2009);
In re Ramirez, 795 F.2d 1494, 1497 (9th Cir. 1986) (“The
determination of child support rights is a matter of state statutory and common law.”), superseded by statute as recognized
in In re Leibowitz, 217 F.3d 799, 800 (9th Cir. 2000).
[22] The question before the Court is whether child support arrearages belong to Dann such that they may be
assigned to the victim by a restitution order, or whether the
arrearage actually belongs to her children. This is a matter of
first impression.
arrearages at a time when someone other than herself or [defendant’s ex-husband] has custody of the children, and the money is
needed to support the children, she can move to modify the restitution order so that she is allowed to sign over the arrearages to
the guardian rather than to the victim. During the time these child
support arrearages were accruing, Defendant and her children
were receiving the benefit of unpaid childcare services from the
victim. It is equitable that these arrearages be paid over, although
belatedly, to the victim.
Dann, 2010 WL 2891585, at *2.

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As a general rule, a parent’s obligation to pay child support
runs to the child, rather than to the other parent, and “the parent, to whom such support is paid, is but a mere conduit for
the disbursement of that support.” Williams v. Williams, 8
Cal. App. 3d 636, 640 (1970). Indeed, the equities between
the parents do not alter the child support obligation. Comer,
14 Cal. 4th 504, 516 (1996).
We acknowledge California authority recognizing that
when a custodial parent has expended her own resources, she
may recover the accrued child support for her own benefit,
and that that right of reimbursement may be assigned in certain circumstances. See, e.g., In re Marriage of Utigard, 126
Cal. App. 3d 133, 141-42 (1981)); Cal. Welf. & Inst. Code
§ 11477(a) (requiring the assignment of child support arrearages to the state where the state has dispersed cash assistance
to the child).
The California Supreme Court holdings in In re Marriage
of Damico and Comer, however, suggest that even the assignable right of reimbursement to the custodial parent is superceded if reimbursement is sought when the children are
minors. In re Marriage of Damico, 7 Cal. 4th 673 (1994);
Comer, 14 Cal. 4th at 516. For example, the Damico court
held that a custodial parent is estopped from bringing a claim
for accrued child support if she concealed the children from
the non-custodial parent when the children were minors.
Damico, 7 Cal. 4th at 684-85. In Comer, however, this holding was limited to cases where the custodial parent brings a
suit after the children have reached majority. 14 Cal. 4th at
516. A custodial parent may sue for accrued child support
even if she previously concealed the child, so long as the child
is not yet an adult. Id. Comer thus seems to suggest that
accrued payments belong to the child until adulthood.
The Comer court explained that
[t]his distinction [regarding the child’s age] is a significant one, because, in contrast to most adults, chil-

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dren (particularly those in their early years) in
fairness cannot be expected to raise themselves and
pursue an education without the financial support of
responsible adults . . . The child’s need for sustenance must be the paramount consideration.
Id. at 516 (quotation marks and citation omitted). If child support has not been paid for a period of time, it is likely that the
child’s needs were met at only a minimal level. Id. at 517-18.
Thus, a child may have accrued needs, including educational
expenses or cultural opportunities, that may be met by an
accrued child support payment, and these needs trump the
custodial parent’s entitlement to reimbursement.
[23] Read together, Damico and Comer suggest that so
long as the children have not reached majority, a custodial
parent remains the “conduit” for child support — even
accrued child support. We therefore conclude that 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.
In re Estate of Spirtos, 443 F.3d 1172, 1177 n.4 (9th Cir.
2006), is not to the contrary. In a footnote, this Court noted
that “[u]nder California law, ‘the custodial parent, not the
child, has the beneficial interest in collecting arrearages in
child support.’ ” Id. (quoting Cnty. of Shasta v. Smith, 38 Cal.
App. 4th 329, 335 (1995) and citing In re Marriage of Lackey,
143 Cal. App. 3d 698, 706 (1983) and Utigard, 126 Cal. App.
3d at 143). Spirtos, Shasta and Lackey cite Utigard for the
proposition that a child is not the real party of interest in
accrued child support. Spirtos, 443 F.3d at 1177 n.4; Shasta,
38 Cal. App. 4th at 335; Lackey, 143 Cal. App. 3d at 706.
Utigard, however, involved adult children’s interest in collecting child support arrearages. 126 Cal. App. 3d at 137
(“Mary Lou . . . and four of her adult children appeal from the

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judgment.”) (emphasis added). In Utigard, the court
addressed a property dispute after a divorce. The plaintiff’s
ex-husband conveyed their marital home to his new wife in an
attempt to avoid a writ of execution for then accrued child
support. When the plaintiff eventually filed an action under
the Uniform Fraudulent Conveyance Act five years later, the
trial court found that the statute of limitations had run.
Because her children — who were minors at the time of the
conveyance — were not barred by the statute of limitations,
she attempted to have the writ of execution issued in their
names. In a very narrow ruling, the Utigard court found that
the now adult children had no interest in the accrued child
support. Id. at 143.
The Utigard court noted that in this case “no issue [was]
tendered concerning the present or future needs of the children, nor any issue concerning the relation of the unpaid support to the children’s needs.” 126 Cal. App. 3d at 139. They
declined to reach the “question under what conditions the
children might be deemed the beneficiaries of arrearages in
child support. . . . Similarly, [they did] not decide how to
resolve a dispute between parent and child as to entitlement
to arrearages.” Id. at 144.
Indeed, the holding in Utigard seems to hinge precisely on
the fact that the case did not involve minor children who
needed funds. Throughout the case law, California courts are
guided by a fundamental principle: “In any proceedings
involving custody and support it is axiomatic that the court
should always adopt the course that is for the best interests of
the child.” Comer, 14 Cal. 4th at 517 (internal quotation
marks omitted) (quoting Evans v. Evans, 185 Cal. App. 2d
566, 572 (1960)).
We have therefore concluded that under California law, the
custodial parent is a conduit for accrued child support to meet
the needs of her minor children. In the case at hand, however,
the district court pointed out that Dann is not currently the

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custodial parent. Because Dann is incarcerated, the district
court assumed that payments made to her would not benefit
her children. Like a parent of a child who has reached the age
of majority, the district court reasoned, Dann is entitled to
accrued child support as reimbursement to her personally for
the funds that she expended to care for her children while she
was not receiving support. Accordingly the funds belong to
Dann and not to her children; and any sums received should
be paid to Peña Canal, who provided child support services
during this time period.
While at first glance the district court’s order seems equitable in this particular case, its implications are troubling. The
district court assumed that accrued child support payments
paid to Dann would not benefit Dann’s children simply
because Dann is incarcerated. By this logic, young children of
incarcerated parents could lose the benefit of accrued child
support payments which — as the district court recognized —
the children may very well need.10 Indeed, the children of
incarcerated women are especially vulnerable. They have
likely accrued needs that may be met by any payments of support, even late ones.
[24] The district court erred when it assumed that these
funds belonged to Dann in the first instance. As applied to
these facts, we read California law as stating that, until a child
reaches the age of majority, the child is the real party of interest in child support arrearages. To the extent that accrued
child support payments are made to a parent while she is in
prison, she remains a conduit for her child’s support and free
to disperse those funds for the care of her child. See Comer,
14 Cal. 4th at 516; Williams, 8 Cal. App. 3d at 640. Accrued
child support is simply not the property of the parent (of a
10

The court suggested that the defendant may move to modify the order
when she regains custody of the children, or she could move to modify the
order “so that she is allowed to sign over the arrearages” to a guardian of
her children while she is incarcerated. Dann, 2010 WL 2891585, at *2.

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child who has not yet reached majority) to be redistributed to
a victim as restitution.
We should note that the district court’s order in this case
also raises practical challenges. The single most important
question in an action that involves child support in any form
is the need and interest of the minor child. See In re Marriage
of Lippel, 51 Cal. 3d 1160, 1172 n.4 (1990). State family
courts or probate courts are best equipped to balance the equities and determine the best interest of children, and federal
courts should not interfere by exercising authority over child
support payments in a criminal proceeding. In the case at
hand, for instance, the children were not represented. No
guardian ad litem weighed in at the sentencing hearing in federal court when the restitution order was rendered. Although
perhaps equitable in the instant case, a restitution order simply
cannot redistribute child support — or accrued child support
— where minor children are involved.
[25] The district court’s order directing that accrued child
support payments be made directly to Peña Canal is
REVERSED.
AFFIRMED IN PART, REVERSED IN PART.