Criminal Action: United States of America Vs Salvador Hernandez

Case 5:12-cr-00010-NAM Document 2 Filed 04/06/12 Page 1 of 3

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF NEW YORK
--------------------------------------------x
UNITED STATES OF AMERICA
vs. 12-cr-10
SALVADOR HERNANDEZ,
Defendant.
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Transcript of Change of Plea held on

April 6, 2012, at the James Hanley Federal Building,
100 South Clinton Street, Syracuse, New York, the

HONORABLE NORMAN A. MORDUE, United States District
Court Judge, Presiding.
A P P E A R A N C E S
For Government: OFFICE OF THE UNITED STATES ATTORNEY

P.O. Box 7198
100 South Clinton Street
Syracuse, New York 13261-7198
BY: RICHARD SOUTHWICK,
Assistant U.S. Attorney
For Defendant: GEORGE F. HILDEBRANDT

Attorney at Law
304 South Franklin Street
Syracuse, New York 13202
Eileen McDonough, RPR, CRR

Official U.S. Court Reporter
P.O. Box 7367
Syracuse, New York 13261-7367
(315)234-8546
2
1 THE COURT: Will the Clerk please call the

2 case and have counsel note their appearance for the record.
3 THE CLERK: 2012-cr-10; United States of
4 America versus Salvador Hernandez. Please note your

5 appearances for the record.
6 MR. SOUTHWICK: For the United States, Richard
7 Southwick. Good morning.

8 THE COURT: Good morning.
9 MR. HILDEBRANDT: Good morning, Your Honor.

10 George Hildebrandt for Salvador Hernandez, who is also here,
11 with Nancy Rodriguez-Walker, the interpreter.
12 THE COURT: Good morning. Nancy Walker, good

13 morning.
14 THE INTERPRETER: Good morning.
15 THE COURT: And Mr. Salvador Hernandez, good

16 morning.
17 THE DEFENDANT: Good morning.

18 THE COURT: Swear in the interpreter, please.
19 (The interpreter, Nancy Rodriguez-Walker, was
20 duly sworn to interpret the following.)

21 THE COURT: This case is on this morning,
22 Salvador Hernandez, for a disposition of the charges pending
23 against you. Now, the first thing that's going to happen, I

24 have to discuss a waiver of your right to have a Grand Jury
25 hear the charges and consider whether you should be indicted

3
1 on these crimes.
2 I want to inform you at this time, you have a
3 Constitutional right to be charged by an indictment handed up
4 by a Grand Jury. That's the only way you can be charged with
5 a felony. Except for this, today the felony charges against
6 you are -- the charge is being brought against you by the
7 United States Attorney by the filing of an Information

8 against you charging you with a felony. However, unless you
9 waive indictment, you cannot be charged with that felony. As

10 I said before, the only way you can be charged with a felony
11 is if a Grand Jury returns an indictment against you after
12 having found probable cause to believe a crime has been

13 committed and that you are the person that committed that
14 crime.
15 Now, if you do not waive indictment,

16 Mr. Hernandez, Mr. Southwick can take your case to a Grand
17 Jury and seek an indictment against you anyway. Now, the

18 Grand Jury is composed of at least 16 but not more than 23
19 persons, and at least 12 of those grand jurors must find that
20 there is probable cause to believe that a crime, a felony,

21 was committed and you're the person that committed that
22 felony before you can be indicted.
23 Now, Mr. Hernandez, have you discussed waiving

24 your right to an indictment with your attorney,
25 Mr. Hildebrandt?
4
1 THE DEFENDANT: Yes.

2 THE COURT: Do you understand you do have a
3 right to have a Grand Jury hear your case?

5 THE COURT: Have any threats or promises been
6 made to you to induce you to waive indictment this morning?
7 THE DEFENDANT: No, none.

8 THE COURT: Do you wish to waive your right to
9 an indictment at this time?

11 THE COURT: Mr. Hildebrandt, do you see any
12 reason why your client should not waive indictment this

13 morning?
14 MR. HILDEBRANDT: No, Your Honor.
15 THE COURT: I would like the defendant,

16 Mr. Salvador Hernandez, and Mr. Hildebrandt to sign the
17 waiver form and present it to the Court.

18 I have been presented with a waiver form in
19 the case of United States America versus Salvador Hernandez,
20 case number 5:12-cr-10. That is your signature, Salvador

21 Hernandez?
23 THE COURT: You have much better handwriting

24 than your attorney, Mr. Hildebrandt. And that's your
25 writing, Mr. Hildebrandt?

5
1 MR. HILDEBRANDT: Yes.

2 THE COURT: All right. I find the defendant
3 has knowingly and voluntarily waived indictment and that
4 waiver is accepted into the record at this time. I'm going

5 to acknowledge the signatures of the defendant and his
6 defense counsel, Mr. Hildebrandt, and present this to the
7 court for filing in the clerk's office.

8 Mr. Hernandez, I'm now going to go on with the
9 plea of guilty here. Before I accept your plea of guilty,

10 however, I'm going to explain to you some of the rights
11 you're going to give up by pleading guilty. I'm going to
12 discuss the consequences of pleading guilty with you. Then

13 I'm going to ask you some questions. And if I'm satisfied
14 that your plea this morning is given knowingly and
15 intentionally, I will accept your plea.

16 However, before I proceed any further, let me
17 ask you this, have you had adequate time and opportunity to
18 discuss all aspects of your case with your attorney,
19 Mr. Hildebrandt?

21 THE COURT: Now, since you're pleading guilty,
22 Mr. Hernandez, you're giving up your right to a trial, there
23 will be no trial in this case. As a result, I'm going to

24 discuss some of the rights that you're giving up that go
25 along with the trial.

6
1 You have a right to a speedy and public trial

2 by an impartial jury, or you could have the case tried before
3 me without a jury, if you chose to. At your trial you would
4 be presumed to be innocent. The burden would be upon the

5 United States Government to prove your guilt by proof beyond
6 a reasonable doubt to the satisfaction of the jury or to the
7 satisfaction of myself if you would rather have me hear the

8 case.
9 At your trial you would be entitled to the

10 right of an attorney to be present with you at all stages of
11 the trial and to protect your rights. In your case, you're
12 very fortunate, you have an outstanding defense lawyer who

13 has practiced for years in the federal courts and the state
14 courts in handling defense matters. He would be there at all
15 stages of your trial to assist you. You would also have a

16 right to use subpoenas and other processes of this court so
17 that you could bring any witness you wanted into this
18 courtroom to testify in your case, or you could bring in any
19 documentary evidence into the case which you felt could
20 assist in your defense.

21 And lastly, when it came to testifying, you
22 know you would have the right to testify in your trial, it's
23 your trial, you also have a Constitutional right to not

24 testify. You do not have to say a word, you do not have to
25 take part in a trial, and if you chose -- and that's a

7
1 decision you would make with Mr. Hildebrandt at some point in

2 your trial. But if you did not testify in your trial, the
3 fact that you did not testify could not be used against you
4 as any indication of your guilt.

5 So, if I accept your plea of guilty, you're
6 going to give up the rights I just listed, there is not going
7 to be a trial of any kind, and I'm going to have the same

8 authority to sentence you on the date of sentence just as
9 though you went through a full trial and the jury returned a
10 verdict of guilty against you on Count One as is alleged in
11 the Information.
12 Now, do you understand what I've said so far,

13 sir?
15 THE COURT: In a couple minutes my clerk is

16 going to take your plea of guilty. After she does that, I'll
17 be asking you a series of questions. By and large, I'm going

18 to concern myself with whether or not you're pleading guilty
19 freely and voluntarily, whether or not any promises of
20 leniency have been made to induce you to plead guilty other

21 than what is contained in your plea agreement, which I have
22 read. I want to know if any threats or force is being used
23 against you to induce you to plead guilty. And I want to

24 know as you stand here today if you are under the influence
25 of any sort of narcotic, drugs, pills, medicine, alcohol or

8
1 anything that could impair your ability to understand the

2 nature of this charge and the consequences of pleading guilty
3 to that charge.
4 I'm then going to ask Mr. Southwick to explain

5 to me how the government could prove this case if it went to
6 trial. I'm doing it for a couple of reasons. I want to make
7 sure that what he tells me is, in fact, a violation of the

8 statute you're pleading guilty to and that that's what they
9 can prove. I also want you to listen closely to it because I

10 want to ask you a question about what Mr. Southwick says.
11 Now, you're going to be placed under oath,
12 that means you're going to be sworn to tell the truth.

13 Everything you say is going to be taken down by this court
14 reporter. You've got your attorney, Mr. Hildebrandt, with
15 you this morning. His job here today in this courtroom is to

16 protect your rights as to a serious criminal procedure
17 matter, you're pleading guilty in the United States Federal

18 Court to a crime.
19 I'm going to ask you a series of questions.
20 Everything you said I told you would be taken down. If you

21 misstate the truth to me, all the government has to do,
22 Mr. Southwick, is ask for a copy of what you said today under
23 oath in the federal court, and if it's a lie, he can take it

24 to another Grand Jury and seek an indictment against you for
25 perjury or for making a false statement.

9
1 So, my advice to you is this. If I ask you

2 anything, you have any question in your mind before you
3 answer it, talk to Mr. Hildebrandt before you answer it so
4 that you don't find yourself in a problem later.

5 I'm going to assure myself that you've been
6 furnished with a copy of the charging instrument, that is the
7 Information, and that you've read that charge, that you

8 understand that charge. I want to assure myself that you
9 have had sufficient opportunity to discuss all aspects of

10 your case with your attorney and that he, in fact, has gone
11 over the charge with you, he has discussed any defenses you
12 might have to it, and that he has discussed all your rights
13 with you. I will question Mr. Hildebrandt separately from
14 you.
15 I want you to understand right now at this

16 moment you are innocent in the eyes of the law. When you
17 enter your plea of guilty, the presumption of innocence is

18 gone, doesn't exist any more, you now stand convicted of a
19 serious felony charge with serious consequences. So, I'm
20 telling you don't plead guilty unless you are, in fact,

21 guilty of the charge as is alleged in Count One of the
22 Information.
23 I'm now going to ask my clerk to swear you in

24 to tell the truth.
25 THE CLERK: Sir, please state your full name

10
1 for the record.

2 THE DEFENDANT: Salvador Hernandez.
3 THE CLERK: Please raise your right hand.
4 (The defendant was duly sworn to tell the

5 truth.)
6 THE COURT: Mr. Hernandez, do you understand
7 the rights that you have?

9 THE COURT: Do you wish to enter your plea of

10 guilty at this time?
12 THE COURT: Will the clerk take the plea?

13 THE CLERK: Count One of the Information
14 charges: At all times material herein.
15 1. Sunrise Labor, Inc. (hereinafter Sunrise

16 Labor) was a company incorporated in Florida that supplied
17 laborers to harvest, pack and store agricultural crops in

18 several states in the United States, including Florida,
19 Georgia, Illinois and New York.
20 2. The defendant Salvador Hernandez was

21 employed as a crew leader for Sunrise Labor, with a principal
22 residence in Belle Glade, Florida. The defendant's
23 responsibilities included hiring and training Hispanic manual

24 laborers for crop harvesting, packing and storing positions
25 at various Sunrise Labor farm sites, primarily in Florida,

11
1 Georgia, Illinois and New York.

2 3. From at least August 2008 through
3 August 2009, in Cayuga County, in the Northern District of
4 New York, and elsewhere, the defendant Salvador Hernandez and

5 others did unlawfully, willfully and knowingly combine,
6 conspire, confederate and agree to commit an offense against
7 the United States, in that they did knowingly hire for

8 employment at least ten individuals within a 12-month period,
9 with actual knowledge that these individuals were

10 unauthorized aliens who were brought to the United States in
11 violation of the law. All in violation of Title 8, United
12 States Code, Section 1324(a)(3).

13 Sir, how do you plead to Count One of the
14 Information?
15 THE DEFENDANT: Guilty.

16 THE CLERK: Thank you.
17 THE COURT: Could you state your full name for

18 me, please?
19 THE DEFENDANT: Salvador Hernandez.
20 THE COURT: Do you have a middle name?

21 THE DEFENDANT: No. Morales, but that's my
22 mother's last name.
23 MR. SOUTHWICK: Judge, can I interrupt just

24 for a moment? I apologize.
25 THE COURT: Sure.

12
1 MR. SOUTHWICK: Judge, Ms. Roberts, this is a

2 slightly different type of Information than we normally do,
3 she stopped, we had a paragraph 3. He needs to admit to an
4 overt act as well.

5 THE COURT: I read the overt acts in the back
6 there. Yes, you need to ask the overt acts.
7 THE CLERK: 4. It was part of the conspiracy

8 that Sunrise Labor managers, including defendant Salvador
9 Hernandez, would and did seek to hire Hispanic workers to

10 harvest agricultural crops at farms in the states of Florida,
11 Georgia, Illinois and New York, with little or no regard to
12 the legal status of the workers.

13 5. It was part of the conspiracy that Sunrise
14 Labor managers, including defendant Salvador Hernandez, would
15 and did allow workers whom they knew had no legal status and
16 who presented questionable and invalid Social Security
17 numbers for employment eligibility purposes to be hired and

18 employed at Sunrise Labor work sites.
19 Overt acts in furtherance of the conspiracy.
20 6. In furtherance of the conspiracy, defendant

21 Salvador Hernandez and other co-conspirators committed the
22 following overt acts in the Northern District of New York and
23 elsewhere.
24 7. On August 3rd, 2009, Salvador Hernandez
25 certified and signed an I-9 form for Sunrise Labor employee

13
1 L.L., attesting that he had examined documents for this

2 employee indicating that he was a legal permanent resident of
3 the United States and authorized him to work, when, in fact,
4 he well knew that L.L. was an illegal alien.

5 8. On August 6, 2009, Salvador Hernandez
6 certified and signed I-9 forms for Sunrise Labor employees,
7 initials A.R., M.G., C.G., L.M., M.M., A.D., S.O., D.H. and
8 A.H., attesting that he had examined documents for these
9 employees indicating that each one was a legal permanent

10 resident of the United States and authorized to work, when,
11 in fact, he well knew that each one was an illegal alien.
12 All in violation of Title 18, United States

13 Code, Section 371.
14 Sir, how do you plead to Count One of the
15 Information?
16 THE DEFENDANT: Guilty.
17 THE CLERK: Thank you.

18 THE COURT: Okay. So would that be right
19 then, Salvador Morales Hernandez, is that correct?

21 THE COURT: How old are you, sir?
22 THE DEFENDANT: Fifty.
23 THE COURT: The highest grade of school you

24 completed?
25 THE DEFENDANT: Just sixth grade.

14
1 THE COURT: Where do you live?

2 THE DEFENDANT: Belle Glade, Florida.
3 THE COURT: Are you married?
4 THE DEFENDANT: Married.

5 THE COURT: Do you have children?
6 THE DEFENDANT: Four kids.
7 THE COURT: Let me ask you this. What's the

8 age of the children?
9 THE DEFENDANT: Carlito is 13; Salvador,

10 Junior is 10; Alondra is seven, Amanda is four.
11 THE COURT: Now, what is your address down
12 there in Belle Glade?

13 THE DEFENDANT: 1132 Northeast 28th Street,
14 Belle Glade, Florida, 33430.
15 THE COURT: Let me ask you, do the four

16 children live at that same address, 1132 Northeast
17 28th Street?
18 THE DEFENDANT: Yes. I take care of them.
19 THE COURT: Is their mother there, too?

21 THE COURT: And what type of work do you
22 ordinarily do?
23 THE DEFENDANT: It's all working the fields.

24 THE COURT: And are you working right now? Do
25 you have a job right now?

15
1 THE DEFENDANT: No. January 7th I had a heart

2 attack of this year and I can't work for three months.
3 THE COURT: Let me ask you this question. Do
4 you use narcotics?

5 THE DEFENDANT: No.
6 THE COURT: Have you taken any narcotics or
7 alcohol in the past 24 hours?

8 THE DEFENDANT: Just medicines.
9 THE COURT: Was there ever a time that you did

10 use narcotics?
11 THE DEFENDANT: Never.
12 THE COURT: So, right now you're taking some

13 pills, drugs or medicine because of your heart?
14 THE DEFENDANT: Ten medicines total.
15 THE COURT: So you're currently under the care

16 of a physician?
17 THE DEFENDANT: Yes. I have an appointment in

18 May, May 18th, to go back to the doctor because I still have
19 an artery that's clogged.
20 THE COURT: Do you go into Belle Glade or West

21 Palm?
22 THE DEFENDANT: West Palm.
23 THE COURT: Is your ability to understand what

24 we're saying to each other impaired in any way? I know we
25 have an interpreter, but do you feel comfortable that you are

16
1 understanding our communications?

3 THE COURT: Can you tell me your attorney's
4 name?
5 THE DEFENDANT: George.
6 THE COURT: That's good enough. Now, was he
7 hired -- did you hire him or is he appointed?

8 THE DEFENDANT: I paid him.
9 THE COURT: Are you satisfied with his

10 representation of you?
11 THE DEFENDANT: Yes, very happy.
12 THE COURT: Has he advised you of your rights?

13 THE DEFENDANT: Yes, explained my rights and
14 everything.
15 THE COURT: Is there anything you would like

16 to ask me this morning about your case?

18 THE COURT: Has Mr. Hildebrandt, or has the
19 United States Attorney, Mr. Southwick -- and you're the
20 investigating agent?
21 MR. SOUTHWICK: He is not. Here today is
22 Special Agent Chad Willard, but the case agent is Roni
23 Dickhaut.
24 THE COURT: Has your attorney,
25 Mr. Hildebrandt, has Mr. Southwick, or any government agent,

17
1 or anyone made any promises to you that you were going to be

2 treated leniently or any other kind of a promise to get you
3 to plead guilty?

5 THE COURT: Has any force or threat been used
6 against you to induce you to plead guilty?

8 THE COURT: Are you pleading guilty then
9 freely and voluntarily?

11 THE COURT: Are you presently on probation
12 from any other court?

14 THE COURT: Are you on parole from any penal
15 institution?
17 THE COURT: Now, you have been arrested

18 before, correct?
19 THE DEFENDANT: A few days, but yes, I have
20 been.
21 THE COURT: And they were all misdemeanors, as
22 I understand?
23 THE DEFENDANT: Yes, think so.

24 THE COURT: That's what you show, Darcy,
25 right, misdemeanors?
18
1 PROBATION OFFICER: Yes.

2 THE COURT: Mr. Southwick, does the government
3 have sufficient evidence to prove this defendant guilty by
4 proof beyond a reasonable doubt of the count alleged in the

5 Information?
6 MR. SOUTHWICK: Yes, Your Honor.
7 THE COURT: Would you state what the

8 government would prove if this case went to trial? Now,
9 Mr. Hernandez, I want you to listen to what he says because

10 I'm going to ask you a question about it, sir.
11 Mr. Southwick, please.
12 MR. SOUTHWICK: Yes, Your Honor. Your Honor,

13 if there had been a trial in this case, the United States
14 would have called several witnesses. Among those witnesses
15 would have been two individuals who were employed by the

16 defendant in Upstate New York in the summer and fall of 2009.
17 They would have testified that they were illegal aliens who
18 were employed by the defendant to harvest crops. They were
19 located at a farm in Southern Cayuga County near King Ferry,
20 New York, a farm.

21 Those individuals would testify that they left
22 the farm, went to Rochester and became associated with some
23 local charities up there who, in fact, referred them to

24 immigration authorities. They advised immigration
25 authorities that there were a large number of illegal aliens

19
1 working at this farm harvesting sweet corn at the time. That

2 evidence would have been presented at court.
3 They would have also testified that both men
4 were hired by this defendant and were in Florida, Belle

5 Glade, Florida, where he lives and where many of the people
6 who work for him live as well. They would have further
7 testified that they worked for him while he was employed as a

8 crew foreman for a company called Sunrise Labor. Sunrise
9 Labor is an incorporated company in the State of Florida. It

10 provides agricultural harvesting workers for farming interest
11 up and down the east coast, primarily sweet corn, which
12 generally speaking involves harvesting by hand as opposed to

13 the type of corn that's harvested for silage and consumption
14 by live stock. Sweet corn is harvested by hand.
15 There would be further testimony from

16 immigration and customs enforcement special agents that in
17 September of 2009, acting on this information, they went to

18 Turek Farms and conducted surveillances and noted that there
19 was a labor camp there, which is authorized under New York
20 State law. The farmer has a license to bring in temporary

21 workers to harvest the crops. The ICE agents went there and
22 would have testified at trial that they saw several buses and
23 large numbers of individuals who were the harvesters, who

24 were the people brought there to harvest this sweet corn by
25 Sunrise Labor.
20
1 There would be further testimony that at the

2 very beginning of October ICE special agents followed a bus
3 from this farm down Route 81. The bus stopped at a rest area
4 just south of Binghamton, New York, in the state of

5 Pennsylvania. They entered the bus. There were
6 approximately 36 individuals on the bus, including the
7 driver, who identified himself as a U.S. citizen. There was

8 one other U.S. citizen, everyone else on the bus was an
9 illegal alien. Those individuals were then transported by

10 immigration authorities to a location in the Northern
11 District of New York where they were individually interviewed
12 with Spanish speaking interpreters as well as other

13 individuals who assisted them as sort of advocates for
14 farmworkers as well. And also some representatives from the
15 U.S. Department of Justice and from our office, the U.S.

16 Attorney's Office as well.
17 Those ICE special agents would have testified

18 and some of those illegal aliens would have testified that
19 they were, in fact, hired by this defendant and other members
20 of the Sunrise Labor in Belle Glade, Florida, that they were

21 virtually all illegal aliens, and that they were transported
22 to various Sunrise Labor work sites, as is alleged in the
23 Information, up the east coast as the growing season,

24 harvesting season for sweet corn progressed throughout the
25 summer, and that they were in fact working at the Turek farms
21
1 before they were returning on this bus to Florida.

2 There would also be testimony from ICE special
3 agents that they went to the farmer and acquired from him
4 documents consisting for the most part of what are called

5 Immigration Form I-9s. I-9s are employment verification
6 forms. The farmer asked for and received copies from the
7 company Sunrise Labor in this case. These immigration forms

8 are forms that the Department of Homeland Security requires
9 each worker to fill out and the employer of each of those

10 workers is required to examine proof that these individuals
11 are authorized to live and work in the United States before
12 they can be employed.

13 Those I-9 forms, which also are referred to in
14 the Information and the plea agreement, would have been
15 offered into evidence at trial. They would have shown that

16 this defendant certified that he knew and had seen evidence
17 of the fact that the workers employed by him at this location

18 were, in fact, legal permanent residents of the United States
19 or otherwise authorized to work here.
20 There would be further proof at trial from

21 those workers and other witnesses that the defendant well
22 knew that they were not lawfully authorized persons to live
23 and work in the United States, and that the assertions on the
24 I-9s and certifying that they were was false and untrue.
25 There would be further testimony that Sunrise

22
1 Labor employees, including this defendant, participated in

2 the creation of these form I-9s being Owen Martinez, his
3 brother Francisco Hernandez, other individuals, who
4 translated or purported to have prepared these documents,

5 these Form I-9s, using information that was provided by the
6 workers indicating that they were legal permanent residents
7 or otherwise authorized to live and work in the United

8 States, when this defendant and those individuals working
9 with them well knew that that was not the case. They knew
10 that nearly every single one of these people were illegal
11 aliens. And individuals whose initials appear in the
12 Information and in the plea agreement are individuals who

13 were well-known and they were hired by him and he knew they
14 were illegal aliens.
15 Lastly, Your Honor, as the plea agreement

16 indicates, this occurred over the course of two growing
17 seasons, the summer of '08 and '09. And there would be proof
18 offered at trial by the United States that between the number
19 of illegal aliens that the defendant conspired to knowingly
20 employ in this case would have been between 25 and 99.

21 THE COURT: Okay. Mr. Hernandez, you just
22 heard Mr. Southwick state what the government could prove if
23 your case went to trial. They feel that satisfies, that's

24 sufficient proof to convict you of this charge in the
25 Information. So, let me ask you this. Is what Mr. Southwick

23
1 said, is that what happened in your case?

3 THE COURT: And Mr. Hildebrandt, based upon
4 your investigation into this case and based on the discovery

5 you have had, is that also your understanding of what has
6 transpired?
7 MR. HILDEBRANDT: Yes, Judge.

8 THE COURT: Mr. Southwick, would you inform
9 the defendant and the Court what the maximum penalty is for
10 the count involved here?
11 MR. SOUTHWICK: Yes, Your Honor. Your Honor,
12 the defendant is today pleading to a violation of Title 18,

13 United States Code, Section 371, conspiracy to commit a
14 federal offense, the object of the crime being Title 8,
15 United States Code, Section 1324(a)(3). The maximum sentence

16 available under the crime for which he has pled guilty, 18
17 U.S.C., Section 371, is a maximum term of five years

18 imprisonment, a maximum fine of $250,000, a period of
19 supervised release of up to three years to begin at the
20 expiration of any term of imprisonment imposed upon him, a

21 special assessment of $100.
22 And this is a felony offense, Your Honor. It
23 carries with it the attendant loss of certain rights under

24 our law, including the right to possess firearms, if he is a
25 U.S. citizen, the right to vote, and may well have adverse
24
1 consequences as to his immigration status.

2 THE COURT: Well, reading what the probation
3 provided, Ms. Pitkin gave me, it's my understanding he is a
4 citizen.
5 MR. SOUTHWICK: I don't think that's true,
6 Your Honor. I think he is a legal permanent resident of the
7 United States.
8 THE COURT: He married an American?
9 MR. SOUTHWICK: There was some confusion about

10 this early on in the case because, quite frankly, the name
11 Salvador Hernandez, I don't want to say it's the John Smith
12 of Hispanic names, but it is a very common name. It's my

13 understanding based upon documents that I've seen and also
14 discussions I've had with Mr. Hildebrandt as well, he is a
15 legal permanent resident of the United States.

16 THE COURT: So, it's possible that he could
17 deported then?
18 MR. SOUTHWICK: It's possible and the subject
19 of much discussion with the defense. This particular
20 offense, it's my understanding, doesn't automatically require

21 deportation, although I'm not an immigration lawyer and I
22 make no representation to be.
23 THE COURT: It's not like a drug offense.

24 MR. SOUTHWICK: Correct. I believe it's not
25 an aggravated felony. However, that's not a guarantee and it

25
1 will have to be dealt with in another forum by an immigration

2 court. I know from my discussions with Mr. Hildebrandt he
3 has had discussions and reviewed this with the immigration
4 lawyer who works for the defendant as well.

5 But in terms of what the consequences, in that
6 I want the record to be clear, that it certainly could result
7 in that as well and I want the plea to be with that

8 understanding.
9 THE COURT: Okay. Could you state for the

10 record any stipulations that you made to the defendant that
11 are contained in the plea agreement?
12 MR. SOUTHWICK: Yes, Your Honor. We made

13 stipulations with regard to the Sentencing Guidelines, Your
14 Honor, in the plea agreement. Under the Section 9 of the
15 plea agreement it says that the parties stipulate that the

16 base offense level under Sentencing Guideline 2L1.1(a)(3) is
17 12, that's the base offense level. Because the number of

18 unlawful aliens in this case falls into the Guideline between
19 25 and 99, the offense level is increased by six levels.
20 And I should point out that this particular

21 offense by its very nature, it's a conspiracy to hire
22 illegal, at least ten illegal aliens in a 12 month period, so
23 that's the element of the crime. And I wanted to also tell

24 the Court and Mr. Hildebrandt that we think the proof at
25 trial would show that over the two growing seasons there were
26
1 between, approximately between 35 and 40 illegal aliens in

2 his crew, they call it crews, that he would have been
3 responsible for. So that's how we arrive at that Guideline
4 between 25 and 99.

5 THE COURT: Do you agree with that,
6 Mr. Hildebrandt?

8 MR. SOUTHWICK: And so based upon that, Your
9 Honor, with a base offense level of 12, an enhancement of six

10 levels, to reach a total offense level of 18, by his plea of
11 guilty and if the Court credits him for acceptance of
12 responsibility, he would be eligible for three points off,

13 which is a 15 and, I believe, for a Guideline Imprisonment
14 Range of 18 to 24 months.
15 THE COURT: 18 to 24?

16 MR. SOUTHWICK: Yes.
17 THE COURT: Mr. Hernandez, has Mr. Hildebrandt

18 discussed the Sentencing Guidelines with you?
20 THE COURT: Now, you understand based on what

21 we know right now it appears you're going to have a numerical
22 number of 15 for a total offense level, and then the
23 government thinks you're probably going to come out a I;

24 therefore, at this point in time based on what we know, it
25 appears that you're going to be, the recommendation is going

27
1 to be 18 to 24 months of imprisonment for you. Do you

2 understand that?
4 THE COURT: I can't tell you, though, at this

5 time what it's going to be. I've got to get a Presentence
6 Report about you. You're going to get the same report I get.
7 The government's going to get the same report. It's going to

8 lay out your entire background, any criminal history you
9 have. It's going to go into detail about this crime. And

10 then there is going to be in there a recommendation as to
11 where you should be in the Sentencing Guidelines. It may be
12 different than what we said, I just want you to understand

13 that.
14 And when it comes to sentencing, I'm not bound
15 by the Guidelines. Otherwise it says 18 to 24, I'm not bound

16 by that; I could go higher than that if I have reasons for
17 that I could go less than that. There is other factors I

18 have to consider in addition to the Guidelines. So, what I
19 really want you to walk away from here with is this. I
20 cannot tell you right now what your sentence will be, I can
21 only give you an idea of where it might be. That's not a
22 promise. You understand that?

24 THE COURT: Now, I read your plea agreement.
25 You can't withdraw your plea of guilty, do you understand

28
1 that?
3 THE COURT: If you don't like the sentence I
4 impose, you can't say, wait a minute, I want to go to trial.

5 Do you understand that?
6 THE DEFENDANT: I'm understanding this, yes.
7 THE COURT: Well, now that you've been

8 informed of the penalties to the extent that we know them at
9 this time and the Sentencing Guidelines, and my role under

10 those Guidelines, do you still wish to enter your plea of
11 guilty at this time?

13 THE COURT: And are you pleading guilty freely
14 and voluntarily?

16 THE COURT: Did you read the Information
17 containing that charge?

18 THE DEFENDANT: I didn't read it but somebody
19 read it to me.
20 THE COURT: Read to you, okay. And did your

21 attorney explain it to you?
22 THE DEFENDANT: All of it.
23 THE COURT: Did you understand it?

25 THE COURT: Now, there is one more thing I

29
1 want to talk to you about. In the latter part of your plea

2 agreement at the end there is a waiver of your right to
3 appeal, in paragraph number 14. It says this, and you tell
4 me if this is your understanding. When I sentence you, you

5 cannot appeal this case unless I sentence you to more than 24
6 months. If I sentence you to 24 months or less, there will
7 be no appeal. Do you understand that?

9 THE COURT: And the only thing you can appeal

10 is -- if I do sentence you to more than 24 months, the only
11 thing you can appeal is whether or not I was correct when I
12 gave you a sentence greater than 24 months.

13 THE DEFENDANT: Yeah, I understand that.
14 THE COURT: Okay. Let me ask you this. Has
15 there been anybody at all apart from this plea agreement that
16 made any promises to you in return for pleading guilty today?
17 THE DEFENDANT: No, no one.

18 THE COURT: Thank you, sir.
19 Mr. Hildebrandt, if I could just inquire
20 briefly of you, sir. Could you state for the record your
21 background and experience with particular reference to
22 sentencing issues in federal courts?
23 MR. HILDEBRANDT: Yes. I've been admitted to

24 practice in New York State since April of 1985 and in this
25 court since September of 1986. I represented clients in

30
1 thousands of criminal cases and probably all or part of 75

2 felony trials in this court and state courts. I frequently
3 read and research issues of fact and sentencing in federal
4 court, sentencing memorandums on behalf of clients and

5 advocate for sentencing.
6 THE COURT: Can you tell me how much time you
7 spent with your client in preparation for today and how much
8 time you've put into this case?
9 MR. HILDEBRANDT: I spent over the course of

10 two days last year meeting with Mr. Hernandez and
11 Mr. Southwick and have had a number of ongoing discussions
12 with Mr. Southwick with which he has orally provided me with

13 discovery, he has also provided me with documentary discovery
14 which I have reviewed. I've had a number of discussions
15 indirectly with Mr. Hernandez through an attorney in Florida

16 who is representing him on his immigration matter and we had
17 discussions regarding the language of the plea agreements.

18 THE COURT: Okay.
19 MR. HILDEBRANDT: And met with him again
20 today.
21 THE COURT: Have you advised your client of
22 his rights, gone over the nature of the charge with him and
23 discussed the consequences of the plea?

25 THE COURT: Did you get adequate discovery of

31
1 the government's case so that you could make an informed

2 judgment as to how to advise your client?
4 THE COURT: Did you, yourself, make any

5 promises or threats to induce your client, Mr. Hernandez, to
6 plead guilty?
7 MR. HILDEBRANDT: No, I didn't.

8 THE COURT: Are you satisfied Salvador
9 Hernandez is pleading guilty this morning freely,

10 voluntarily, with an understanding of the nature of that
11 charge and the consequences of pleading guilty to that
12 charge?
14 THE COURT: Do you know of any viable defense
15 that you could bring forward on his behalf if you were to go

16 to trial?
17 MR. HILDEBRANDT: He has no affirmative

18 defenses for that conduct.
19 THE COURT: Do you know of any reason why he
20 should not enter a plea of guilty?

21 MR. HILDEBRANDT: No.
22 THE COURT: Based on your 26 years or so
23 practicing in this court, let me ask you this, having regard

24 for the unique nature of the facts of this case and the
25 applicable law, do you feel it's in your client's best

32
1 interest to resolve the case in this fashion as opposed to

2 going to trial?
3 MR. HILDEBRANDT: Yes, I do.
4 THE COURT: Thank you, sir.

5 Based on the foregoing discussion with the
6 defendant, Mr. Hernandez, his attorney, Mr. Hildebrandt, and
7 the Assistant United States Attorney, Mr. Southwick, I find

8 the following. I find Mr. Hernandez has pled guilty
9 voluntarily. I find Mr. Hernandez was competent to enter his

10 plea of guilty. I find that he does understand the charge
11 against him and he understands the consequences of pleading
12 guilty to that charge. I further find there is a basis in

13 fact for the Court to accept this plea into the record.
14 Now, the plea agreement executed between the
15 defendant and the government is incorporated into the record

16 at this time. I'm going to direct the Probation Department
17 to prepare and submit a Presentence Report to the court.

18 Mr. Hernandez, I'm going to set your
19 sentencing down for August the 8th at 10 a.m. here in this
20 courtroom. In the meantime, my courtroom deputy is going to

21 make available to both counsel the Uniform Order of the
22 Northern District of New York that pertains to your
23 obligations as attorneys to make timely objections to that

24 Presentence Report upon receipt of it.
25 The only thing that's left now is the issue of

33
1 remand. Mr. Southwick, what's the position of the

2 government?
3 MR. SOUTHWICK: Your Honor, the defendant has
4 come up here from Florida voluntarily, appeared in court with

5 his attorney. He is a long-term resident of the State of
6 Florida. He has been at the same location for quite a while.
7 And this matter has been pending and we've had discussions
8 for a long time here without any difficulties in terms of
9 Mr. Hernandez's fleeing or anything of that. So we would

10 consent to his release.
11 THE COURT: Well, I read what the Probation
12 Department wrote, and you feel that he is not a risk at this

13 time, right?
14 PROBATION OFFICER: Right.
15 THE COURT: Okay. I'm going to continue you

16 out under the same conditions. Just make sure you're
17 available if the Court needs you. And do you have a

18 passport?
19 MR. HILDEBRANDT: He has a Mexican passport, I
20 think.
21 THE COURT: Can he use a Mexican passport to
22 go to Mexico?
23 MR. SOUTHWICK: Yeah.

24 THE COURT: Then he probably ought to
25 surrender it. This is his first appearance here?

34
1 MR. HILDEBRANDT: That's right.

2 THE COURT: There is some conditions for him
3 to sign also.
4 MR. HILDEBRANDT: Okay. Judge, do you want me

5 to -- can I have him send me the passport?
6 THE COURT: Send it to you and you get it to
7 us, okay. I believe that concludes this matter then?

8 MR. SOUTHWICK: Yes, Your Honor. Just one
9 other thing, Your Honor. Since it is his first appearance,

10 he will need to be processed at the Marshals by the agent.
11 THE COURT: Will you take care of that?
12 MR. SOUTHWICK: Yes.

13 THE CLERK: Court stands adjourned.
14 * * *
15
16
17
18
19
20
21
22
23
24
25
C E R T I F I C A T I O N
I, EILEEN MCDONOUGH, RPR, CRR, Official Court
Reporter in and for the United States District Court,
Northern District of New York, DO HEREBY CERTIFY that I

attended the foregoing proceedings, took stenographic notes
of the same, and that the foregoing is a true and correct

transcript thereof.
________________________________
EILEEN MCDONOUGH, RPR, CRR

Official U.S. Court Reporter
IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF NEW YORK
************************************ Case No. 5:12-CR-10 (NAM)

GOVERNMENT’S SENTENCING
MEMORANDUM
v.
SALVADOR HERNANDEZ,
Defendant.
***********************************
The United States of America, by and through its counsel of record, the United States
Attorney for the Northern District of New York, hereby files its sentencing memorandum requesting
that the defendant be sentenced to 18 months imprisonment, 3 years supervised release and a special
assessment of $100.
INTRODUCTION
On April 6, 2012, the defendant entered a guilty plea to conspiracy to hire illegal aliens in
violation of 18 U.S.C. § 371. The defendant is scheduled to be sentenced on June 14, 2012.
II
APPLICABLE STATUTORY AND GUIDELINES PROVISIONS
1. Statutory Maximum Sentences
The defendant’s conviction for conspiracy to hire illegal aliens, in violation of 18 U.S.C.
§ 371, subjects the defendant to a statutory maximum term of 5 years imprisonment; a three year
maximum term of supervised release, see 18 U.S.C. § 3583; and a fine of $ $250,000.00. See 18
U.S.C. § 3571.
a. Offense Level is 15
Under the federal sentencing guidelines, the “base offense level” for the defendant’s
conviction for Count 1 is 12. See U.S.S.G. § 2L1.1(a)(3) six additional level are added pursuant to
U.S.S.G. Section 2L1.1(b)(2)(B) because the offense involved between 25 and 99 illegal aliens.
b. Acceptance of Responsibility
The defendant is entitled to a two-level downward adjustment to his offense level for
acceptance of responsibility pursuant to U.S.S.G. §3E1.1(a). If the Defendant clearly demonstrates
“acceptance of responsibility” to the satisfaction of the Government and promptly enters a plea of
guilty, thereby permitting the U.S. Attorney’s Office to avoid preparing for trial and permitting the
Government and the Court to allocate their resources efficiently, the U.S. Attorney’s Office may, in
its sole discretion, move for an additional downward adjustment of 1 level, if the Defendant
otherwise qualifies under U.S.S.G. § 3E1.1(b).
c. Criminal History Category
According to the presentence report, the defendant’s criminal history category is I. The
Page 2
government agrees with the Probation Office’s determination of the defendant’s criminal history
category.
d. Guidelines Range and Sentence
As described above, the combined offense level is 15 and the criminal history category is I.
This is consistent with the calculations in the presentence report.
As a result of the above-described calculations, the federal sentencing guidelines sections
advise that the defendant receive a sentence of 18 to 24 months imprisonment.
III
GOVERNMENT’S SENTENCING RECOMMENDATION
Based on all of the information before the Court, the government respectfully requests that
the Court sentence the defendant to 18 months imprisonment, three years of supervised release and
a $100 special assessment. Based upon information in the Presentence Report, no fine is requested.
The sentence that the government recommends here is sufficient, but not greater than
necessary to comply with the sentencing purposes in 18 U.S.C. § 3553(a)(2) for the following
reasons: The defendant, age 51, has long been a “crew chief” in the agricultural harvesting industry.
He hired a full crew of workers (about 45 people) to harvest crops for his employer, Sunrise Labor,
Inc., of Belle Glade, Florida. His long tenure in this field confirms that he is well aware of the laws,
rules and regulations governing the employment of illegal aliens. While it is true that this industry
is rife with illegal alien employees, it is also true that his activities in hiring these workers was in
violation of law. Two full crews from Sunrise Labor came to work in Cayuga County at Turek Farms
in the fall of 2009 headed by the defendant and his brother. The large number of workers involved
Page 3
in this offense highlights the commercial nature the crime. Respect for the law suggests that an
appropriate sanction be applied by the Court in imposing a sentence. The United States believes 18
months imprisonment (the low end of the applicable guideline range) satisfies the factors set forth
in 18 U.S.C. Section 3553(a).
“[I]n the ordinary case, the Commission’s recommendation of a sentencing range will
‘reflect a rough approximation of sentences that might achieve § 3553(a)’s objectives.’” Kimbrough
v. United States, 552 U.S. 85, 89 (2007); see, e.g., Gall v. United States, 552 U.S. 38, 46 (2007)
(Guidelines are “the product of careful study based on extensive empirical evidence derived from
the review of thousands of individual sentencing decisions”). Moreover, within-guidelines sentences
promote Congress’s goal in enacting the Sentencing Reform Act – “to diminish unwarranted
sentencing disparity.” Rita v. United States, 551 U.S. 338, 354 (2007).
The United States respectfully moves the Court for an order directing that the defendant be
remanded immediately after sentence. See 18 U.S.C. § 3143(b). The defendant has long been aware
of the impending sentencing and faces a significant term of imprisonment under the applicable
guidelines. The defendant’s attorney has not identified any substantial question of law or fact likely
to form a viable basis for an appeal.”
Respectfully submitted this 6th day of June, 2013
RICHARD S. HARTUNIAN
United States Attorney
/s/Richard R. Southwick
By:
Richard R. Southwick
Assistant United States Attorney
Bar Roll No. 506265
Page 4

FOR THE NORTHERN DISTRICT OF NEW YORK
*************************************************
UNITED STATES OF AMERICA,
Criminal Action No.
v. 5:12-CR-10 (NAM)
SALVADOR HERNANDEZ,
Defendant.
**************************************************
CERTIFICATE OF SERVICE
I hereby certify that on June 6, 2013, I electronically filed the Government’s
Sentencing Memorandum with the Clerk of the District Court using the CM/ECF system,
which sent notification of such filing to the following:
George Hildebrandt, Esq.
/s/
Annika Estabrook
Legal Assistant
Page 5

NORTHERN DISTRICT OF NEW YORK
--------------------------------------------------------------
-vs-
Criminal Action No. 5:12-CR-10
SALVADOR HERNANDEZ,
Defendant.
--------------------------------------------------------------
DEFENDANT’S SENTENCING MEMORANDUM
The Defendant submits this sentencing memorandum for the Court’s consideration at
sentencing, currently scheduled for June 14, 2013 at 10:30 a.m.
Mr. Hernandez pled guilty to an information charging him with conspiring to commit an
offense against the United States in violation of 18 USC § 371. Mr. Hernandez admitted that he
agreed with others to hire immigrants that were not authorized for employment in the United States
to work as farm laborers for Sunrise Labor, where he was a crew leader. Mr. Hernandez admitted to
agreeing with others to hire at least ten such individuals during a 12- month period, between August,
2008 and August, 2009. The offense has no minimum term of imprisonment and a five year
maximum, and is therefore considered a class D felony. 18 USC § 3559(a)(4); cf. 18 USC
§ 3559(a)(5)(classifying as class E felonies offenses punishable by a maximum term of imprisonment
“less than five years.”) Probation is an authorized - and as set forth below, appropriate – sentence
for this conviction. See 18 USC § 3561(a).

1
BACKGROUND
Mr. Hernandez was a crew leader for Sunrise Labor, a Florida company apparently owned by
two individuals. Mr. Hernandez and other workers harvested and packaged agricultural products at
farms along the East Coast, moving northward with the harvesting season.
The investigation surrounding this matter started in the fall of 2009 when two individuals
left the Cayuga County farm at which they were working and claimed to an investigator for a legal
services organization that they were being mentally and financially abused by Mr. Hernandez. Their
allegations included that they were denied medical care, forced to live in unsanitary conditions,
denied food and drink, required to pay exorbitant fees for food and transportation, and loaned
money at usurious rates for which repayment was extracted at gun point. Given the serious nature
of these individuals’ allegations, authorities conducted a thorough investigation, including
interviewing dozens of the farm laborers who worked in crews supervised by Mr. Hernandez and his
brother.
The allegations were investigated by government agents and non-governmental
organizations, as well as initially by attorneys from the Civil Rights Division of the Justice
Department. As noted in the presentence report (PSR par. 18), however, the allegations were found
to be baseless, and were in fact routinely contradicted by both farmworker and others involved with
Sunrise Labor. As just a few examples, other workers noted that transportation fees were paid by
Sunrise Labor, and allegations that Mr. Hernandez loaned money and deducted it from paychecks
proved impossible, as checks were prepared by Sunrise Labor in Florida and sent to the farm for
distribution. Moreover, the farm workers almost uniformly described Mr. Hernandez in favorable
terms.
The individuals who made the complaints were allegedly singled out by a handful of their co-
workers - completely unrelated to Mr. Hernandez - because of their sexual orientation. It appears
2
that the complaining individuals sought to capitalize on their allegations by parlaying their claims of
mistreatment into a vehicle to obtain legitimate status in the United States. Interestingly, while the
government has obviously found the allegations of mistreatment by Mr. Hernandez (and his wife
and brother) incredible and, together with the Department of Justice, has abandoned the
investigation of those claims against Mr. Hernandez, the complaining individuals’ quest for legal
status has apparently been so far.successful. Reports reflect that these individuals, despite being
illegally in the United States, have been given employment authorization documents and parole
status.
Significantly, Mr. Hernandez’ actions in hiring undocumented workers was not for his own
pecuniary benefit. Rather, Sunrise Labor desperately needed laborers and Mr. Hernandez went door
to door in his community seeking workers. The labor performed by Mr. Hernandez and other
farmworkers involves backbreaking work in often unforgiving weather for low pay, work which few
but those with ambition and little alternative – such as undocumented workers – are willing to
perform. I note that some of the actions alleged by the government were performed by Mr.
Hernandez and others at the direction of one of the owners and a supervisor of Sunrise Labor, an
account which is corroborated to others to whom the government has spoken. PSR pars. 15, 16.
Mr. Hernandez accepts full responsibility for his actions. He cooperated with the
government in its investigation of him, and signed a plea agreement prior to being formally charged,
waiving indictment and pleading to an information at his initial appearance. Mr. Hernandez vows
that he will “never make this mistake again” (PSR par. 24), and has been meticulous in his
compliance with immigration laws with laborers he has recruited or hired since this investigation.
3
MR. HERNANDEZ’ BACKGROUND
Mr. Hernandez has been with his wife, Claudia, for close to 20 years. Mr. and Mrs.
Hernandez have four young children together, ranging in age from five to thirteen. Despite the
itinerant nature of his work, Mr. Hernandez has always ensured that his children attended school as
required, and school records and certificates reflect that the children have received recognition for
their academic achievement. Although Claudia Hernandez has worked alongside her husband in
the past, she generally stays at their home in Belle Glade, Florida with the children while Mr.
Hernandez works, and he is, practically speaking, the sole support for the family.
Mr. Hernandez has a sixth grade education. He came to the United States in his teens, and
has been here approximately 35 years. His story is that of countless immigrants throughout the
history of our country, and one that has come to define our national character – working long hours
at hard labor in often miserable weather conditions to create a better life for himself and his family.
Mr. Hernandez’ strong work ethic is evidenced by his having resumed work last year at the start of
the harvest season in the early spring despite having suffered a heart attack several months earlier in
January, 2012. Mr. Hernandez also suffers from a number of other health issues, including diabetes
and high blood pressure, and takes a variety of medications.
While Mr. Hernandez has a handful of minor offenses on his record, almost all were for
violation level offenses, and most occurred in his 20’s and were related to use of alcohol. Mr.
Hernandez notes emphatically and with pride that he has never worked ‘under the table’, and has
always paid taxes on his income.
SENTENCING CONSIDERATIONS
As noted earlier, Mr. Hernandez did not financially profit from his actions, while the
beneficiary – namely, Sunrise Labor – has, at least to date, escaped criminal prosecution. The
investigation and prosecution, however, has cost Mr. Hernandez dearly. He has had retained
4
counsel defending him on the investigation and prosecution of this matter over the past three-plus
years. His wife, Claudia, is also facing charges from this investigation, for which Mr. Hernandez has
similarly retained an attorney. Because of both his and Mrs. Hernandez’ immigration status, he has
hired counsel to defend against the possibility of removal or other proceedings that might result
from their conviction. Further, both he and Mrs. Hernandez face a civil lawsuit in U.S. District
Court in Florida brought by several of the farm workers who claim to have been mistreated. While I
believe their allegations are spurious, Mr. and Mrs. Hernandez have been required to retain yet other
counsel, in Florida, to defend themselves in the civil litigation, and of course always face the
possibility of an adverse verdict, or as is frequently the case in civil litigation, the cost of settling to
avoid continued defense costs; I note that the plaintiffs in that suit are represented by a legal services
organization which is at least partly government funded, and a Miami law firm and 1500-lawyer
New York firm that is one of the largest in the world, who are apparently acting pro bono. Mr.
Hernandez also suffered an indirect financial burden by having lost employment throughout much
of 2012 as a result of this conviction when employers refused to hire him.
Provided under separate cover are a number of support letters. The letters contain similar
characterizations of Mr. Hernandez, with those writing referring to him as honest and hard-working;
self-sacrificing; selfless in helping others; respected in the community for his honesty, hard work and
humility; and a devoted and much-loved father and husband whose continued presence in his
family’s life is indispensable.
Also included in the letter accompanying Mr. Hernandez’ support letters is the Defendant’s
motion for a downward departure pursuant to USSG §5K2.0. Prior to any departure, Mr.
Hernandez’ sentencing range under the guidelines is already near the bottom of the range of
imprisonment (18-24 months), and the guidelines are of course only one factor for the Court’s
consideration in imposing sentence under 18 USC § 3553(a). United State v. Booker, 543 U.S. 220
5
(2005). Further, the Defendant submits that his guideline range is arbitrarily enhanced by six levels
for the number of aliens involved. See USSG § 2L1.1(b)(2). Without this enhancement, Mr.
Hernandez’ offense level prior to any departure pursuant to § 5K2.0 would be 10 after a reduction
for acceptance of responsibility, with a guideline range of 6-12 months in zone B of the sentencing
table, a range that does not necessarily contemplate imprisonment to satisfy any sentence of
imprisonment.
The Defendant submits that consideration of the basis for Mr. Hernandez’ departure
motion, as well as the other factors the Court is required to consider under § 3553(a), militate
strongly in favor of a sentence of probation or other sentence that does not involve incarceration.
Mr. Hernandez has an insignificant criminal history, and has most certainly learned a hard lesson
from this prosecution. He has suffered a significant financial consequence as result of his actions.
His incarceration would not only exact a further and, I believe, unwarranted financial toll on his
family, but result in a significant emotional burden on them as well given the number and ages of his
children and the love and emotional support he provides them and his wife. I note that several
individuals locally convicted of a similar offense, although acting for commercial advantage and
private gain, avoided imprisonment for their convictions. John Mariani, Execs of company that rebuilt
ShoppingTown theaters are sentenced to home confinement, fines, The Post-Standard, April 6, 2012, available at
http://www.syracuse.com/news/index.ssf/2012/04/execs_of_company_that_rebuilt.html (last
visited June 8, 2013).
Mr. Hernandez has been under pre-trial supervision for well over a year, and under the
scrutiny of the government for almost four years, without incident. There can be little question that
he has the ability, which he has aptly demonstrated, to lead a law-abiding life and conform to the
requirements of the Court and probation department. A sentence of probation authorized for this
offense of between one and five years is an appropriate sentence, and is certainly “sufficient, but not
6
greater than necessary,” to achieve the goals of sentencing. 18 USC 3553(a). Mr. Hernandez
therefore respectfully requests that the Court sentence him to a period of probation.
Dated: June 8, 2013
Respectfully submitted,
/s/
George F. Hildebrandt
Attorney for Defendant
Bar Roll No. 505664
The Crown Building
Tel. (315) 422-4742
7
CERTIFICATE OF SERVICE
I hereby certify that I have served the foregoing Defendant’s Sentencing Memorandum on
the United States Attorney Office for the Northern District of New York, attorneys for the United
States of America in the above matter, by means of the electronic filing system maintained by this
Court, concurrently with the filing thereof.
Dated: June 8, 2013
/s/ .
George F. Hildebrandt, Esq.
Attorney for Defendant
Bar Roll No. 505664
The Crown Building
304 S. Franklin Street
Tel. (315) 422-4742
8
OAO 245B NNY(Rev. 09/12) Judgment in a Criminal Case
Sheet 1

Northern District of New York
UNITED STATES OF AMERICA JUDGMENT IN A CRIMINAL CASE
V.
SALVADOR HERNANDEZ Case Number: DNYN512CR000010-001

USM Number: 20652-052
George F. Hildebrandt, Esq.
300 Crown Building
(315) 422-4742
Defendant’s Attorney
THE DEFENDANT:
X pleaded guilty to count(s) 1 of the Information on April 6, 2012.
G pleaded nolo contendere to count(s)

which was accepted by the court.
G was found guilty on count(s)
after a plea of not guilty.
The defendant is adjudicated guilty of these offenses:
Title & Section Nature of Offense Offense Ended Count

8 U.S.C. § 1324(a)(3) Conspiracy to Hire Illegal Aliens 08/2009 1
The defendant is sentenced as provided in pages 2 through 6 of this judgment. The sentence is imposed in accordance
with 18 U.S.C. § 3553 and the Sentencing Guidelines.
G The defendant has been found not guilty on count(s)
G Count(s) G is G are dismissed on the motion of the United States.
It is ordered that the defendant must notify the United States attorney for this district within 30 days of any change of name, residence,
or mailing address until all fines, restitution, costs, and special assessments imposed by this judgment are fully paid. If ordered to pay restitution,
the defendant must notify the court and United States attorney of material changes in economic circumstances.
June 14, 2013

Date of Imposition of Judgment
June 19, 2013

CAT Date
AO 245B NNY(Rev. 10/05) Judgment in a Criminal Case
Sheet 2 — Imprisonment
Judgment — Page 2 of 6
DEFENDANT: Salvador Hernandez
CASE NUMBER: DNYN512CR000010-001
IMPRISONMENT
The defendant is hereby committed to the custody of the United States Bureau of Prisons to be imprisoned for a total term of:
1 year & 1 day.
X The court makes the following recommendations to the Bureau of Prisons:
The Court recommends the defendant be designated to a facility as close as possible to his home in Florida.
G The defendant is remanded to the custody of the United States Marshal.
G The defendant shall surrender to the United States Marshal for this district:
G at G a.m. G p.m. on .
G as notified by the United States Marshal.
X The defendant shall surrender for service of sentence at the institution designated by the Bureau of Prisons:
X before 2 p.m. on July 23, 2013 .
G as notified by the United States Marshal.
G as notified by the Probation or Pretrial Services Office.
RETURN
I have executed this judgment as follows:
Defendant delivered on to
at , with a certified copy of this judgment.
UNITED STATES MARSHAL
By
DEPUTY UNITED STATES MARSHAL
AO 245B Case
NNY(Rev. 10/05) 5:12-cr-00010-NAM
Judgment in a Criminal Case Document 16 Filed 06/19/13 Page 3 of 6
Sheet 3 — Supervised Release
Judgment—Page 3 of 6
SUPERVISED RELEASE
Upon release from imprisonment, the defendant shall be on supervised release for a term of: 2 years.
The defendant must report to the probation office in the district to which the defendant is released within 72 hours of release from the
custody of the Bureau of Prisons.
The defendant shall not commit another federal, state or local crime.
The defendant shall not unlawfully possess a controlled substance. The defendant shall refrain from any unlawful use of a controlled substance.
The defendant shall submit to one drug test within 15 days of release from imprisonment and at least two periodic drug tests thereafter, as
determined by the court.
G The above drug testing condition is suspended, based on the court’s determination that the defendant poses a low risk of future substance
abuse. (Check, if applicable.)
x The defendant shall not possess a firearm, destructive device, or any other dangerous weapon.
x The defendant shall cooperate in the collection of DNA as directed by the probation officer. (Deselect, if inapplicable.)
G The defendant shall register with the state sex offender registration agency in the state where the defendant resides, works, or is a student,
as directed by the probation officer. (Check, if applicable.)
G The defendant shall participate in an approved program for domestic violence. (Check, if applicable.)
If this judgment imposes a fine or restitution, it is a condition of supervised release that the defendant pay in accordance with the Schedule
of Payments sheet of this judgment.
The defendant must comply with the standard conditions that have been adopted by this court as well as with any additional conditions
on the attached page.
STANDARD CONDITIONS OF SUPERVISION
1) the defendant shall not leave the judicial district without the permission of the court or probation officer;
2) the defendant shall report to the probation officer in a manner and frequency directed by the court or probation officer;
3) the defendant shall answer truthfully all inquiries by the probation officer and follow the instructions of the probation officer;
4) the defendant shall support his or her dependents and meet other family responsibilities;
5) the defendant shall work regularly at a lawful occupation, unless excused by the probation officer for schooling, training, or other
acceptable reasons;
6) the defendant shall notify the probation officer at least ten days prior to any change in residence or employment, or if such prior
notification is not possible, then within five days after such change;
7) the defendant shall refrain from excessive use of alcohol and shall not purchase, possess, use, distribute, import, or manufacture any
and all controlled substance and all controlled substance analogues, as defined in 21 U.S.C. § 802, and any paraphernalia related to any
controlled substances, except that possession and use of a controlled substance properly prescribed by a licensed medical practitioner
is permitted;
8) the defendant shall not frequent places where controlled substances are illegally sold, used, distributed, or administered;
9) the defendant shall not associate with any persons engaged in criminal activity and shall not associate with any person convicted of a
felony, unless granted permission to do so by the probation officer;
10) the defendant shall permit a probation officer to visit him or her at any time at home or elsewhere and shall permit confiscation of any
contraband observed in plain view of the probation officer;
11) the defendant shall notify the probation officer within seventy-two hours of being arrested or questioned by a law enforcement officer;
12) the defendant shall not enter into any agreement to act as an informer or a special agent of a law enforcement agency without the
permission of the court;
13) as directed by the probation officer, the defendant shall notify third parties of risks that may be occasioned by the defendant’s criminal
record or personal history or characteristics and shall permit the probation officer to make such notifications and to confirm the
defendant’s compliance with such notification requirement;
14) the defendant shall not possess a firearm, destructive device, or any other dangerous weapon;
15) the defendant shall provide the probation officer with access to any requested financial information; and
16) the defendant shall submit his or her person, and any property, house, residence, vehicle, papers, effects, computer, electronic
communications devices, and any data storage devices or media, to search at any time, with or without a warrant, by any federal
probation officer, or any other law enforcement officer from whom the Probation Office has requested assistance, with reasonable
suspicion concerning a violation of a condition of probation or supervised release or unlawful conduct by the defendant. Any items
seized may be removed to the Probation Office or to the office of their designee for a more thorough examination.
AO 245B Case
NNY(Rev. 10/05) 5:12-cr-00010-NAM
Judgment in a Criminal Case Document 16 Filed 06/19/13 Page 4 of 6
Sheet 3C — Supervised Release
Judgment—Page 4 of 6
SPECIAL CONDITIONS OF SUPERVISION
N/A
DEFENDANT’S ACKNOWLEDGMENTOF APPLICABLE CONDITIONS OF SUPERVISION
Upon a finding of a violation of probation or supervised release, I understand that the court may (1) revoke supervision,
(2) extend the term of supervision, and/or (3) modify the conditions of supervision.
The conditions of supervision have been read to me. I fully understand the conditions and have been provided a copy
of them.
Defendant Date
U.S. Probation Officer/Designated Witness Date

Criminal Action: United States of America Vs Salvador Hernandez

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Droits d'auteur :

Criminal Action: United States of America Vs Salvador Hernandez

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Case 5:12-cr-00010-NAM Document 2 Filed 04/06/12 Page 1 of 3

Case 5:12-cr-00010-NAM Document 2 Filed 04/06/12 Page 2 of 3

UNITED STATES DISTRICT COURT

Transcript of Change of Plea held on

100 South Clinton Street, Syracuse, New York, the

Court Judge, Presiding.

For Government: OFFICE OF THE UNITED STATES ATTORNEY

For Defendant: GEORGE F. HILDEBRANDT

Eileen McDonough, RPR, CRR

1 THE COURT: Will the Clerk please call the

3 THE CLERK: 2012-cr-10; United States of

4 America versus Salvador Hernandez. Please note your

6 MR. SOUTHWICK: For the United States, Richard

7 Southwick. Good morning.

9 MR. HILDEBRANDT: Good morning, Your Honor.

11 with Nancy Rodriguez-Walker, the interpreter.

12 THE COURT: Good morning. Nancy Walker, good

14 THE INTERPRETER: Good morning.

15 THE COURT: And Mr. Salvador Hernandez, good

17 THE DEFENDANT: Good morning.

19 (The interpreter, Nancy Rodriguez-Walker, was

20 duly sworn to interpret the following.)

22 Salvador Hernandez, for a disposition of the charges pending

23 against you. Now, the first thing that's going to happen, I

25 hear the charges and consider whether you should be indicted

3 Constitutional right to be charged by an indictment handed up

6 you are -- the charge is being brought against you by the

7 United States Attorney by the filing of an Information

9 waive indictment, you cannot be charged with that felony. As

11 is if a Grand Jury returns an indictment against you after

12 having found probable cause to believe a crime has been

15 Now, if you do not waive indictment,

17 Jury and seek an indictment against you anyway. Now, the

19 persons, and at least 12 of those grand jurors must find that

20 there is probable cause to believe that a crime, a felony,

22 felony before you can be indicted.

23 Now, Mr. Hernandez, have you discussed waiving

1 THE DEFENDANT: Yes.

3 right to have a Grand Jury hear your case?

4 THE DEFENDANT: Yes.

6 made to you to induce you to waive indictment this morning?

7 THE DEFENDANT: No, none.

9 an indictment at this time?

11 THE COURT: Mr. Hildebrandt, do you see any

12 reason why your client should not waive indictment this

14 MR. HILDEBRANDT: No, Your Honor.

15 THE COURT: I would like the defendant,

17 waiver form and present it to the Court.

19 the case of United States America versus Salvador Hernandez,

20 case number 5:12-cr-10. That is your signature, Salvador

22 THE DEFENDANT: Yes.

23 THE COURT: You have much better handwriting

25 writing, Mr. Hildebrandt?

1 MR. HILDEBRANDT: Yes.

3 has knowingly and voluntarily waived indictment and that

4 waiver is accepted into the record at this time. I'm going

6 defense counsel, Mr. Hildebrandt, and present this to the

7 court for filing in the clerk's office.

9 plea of guilty here. Before I accept your plea of guilty,

11 you're going to give up by pleading guilty. I'm going to

12 discuss the consequences of pleading guilty with you. Then

14 that your plea this morning is given knowingly and

15 intentionally, I will accept your plea.

20 THE DEFENDANT: Yes.

22 Mr. Hernandez, you're giving up your right to a trial, there

23 will be no trial in this case. As a result, I'm going to