SalemNews.com, Salem, MA

April 27, 2012

Homeland Security official wins new trial

By Julie Manganis
Staff writer

SALEM — A federal judge, who has already gone on record calling prosecutors "overzealous," has granted a new trial to a former Homeland Security official from Salem charged with encouraging her cleaning woman to remain in the country illegally.

Judge Douglas Woodlock cites both the "heedless, hapless and negligent hypocrisy" of Lorraine Henderson, who was Boston area ports director for Customs and Border Protection, and the "stern, solemn and implacable sanctimony" of the U.S. attorney.

Henderson, 54, who had hired Fabiana Bitencourt to clean her Britannia Circle condo, was found guilty in March 2010 of encouraging or inducing a person to be in the United States illegally. Three months later, during a sentencing hearing, her lawyer argued that the verdict should be thrown out or that Henderson should receive a new trial.

Prosecutors are considering an appeal of Woodlock's order.

The judge, who took nearly two years to issue his 51-page decision, concluded that prosecutors were within their rights to bring charges against Henderson — but that his "erroneous" definition of the meaning of the words "encourage" and "induce" in response to a jury question requires that Henderson receive a new trial.

The decision was released yesterday.

Woodlock also warned that prosecutors face an uphill battle if they retry Henderson, suggesting there's evidence that Bitencourt would probably have stayed in the United States regardless of Henderson's advice.

"A sense of outrage out of proportion to the circumstances of the misconduct here has apparently driven the case to be pursued as a felony," the judge wrote, noting that a juror reached out to him after the trial to express similar views.

Woodlock suggested it was punishment enough that Henderson lost her job over the matter.

"I view the pursuit of this case to have been overkill," the judge wrote.

Henderson's lawyer, Francis DiMento, said he has mixed feelings about the ruling, since it does not end the case, as he had hoped when he asked the judge to set aside the jury's verdict.

But he said he's encouraged by the fact that the evolving case law on what it means to "encourage or induce" someone into criminal conduct has created a higher burden on the prosecutors, should they pursue a new trial.

Christina DiIorio-Sterling, a spokeswoman for the U.S. attorney, said in a statement that prosecutors "have great concern with the court's decision to disrupt the jury's verdict finding Ms. Henderson guilty."

"We are assessing our options, including an appeal," she said.

DiMento suggested it's ironic that his client, who felt empathy for Bitencourt, was looking for a legal way for the cleaning woman to stay in the United States and inadvertently found one — Bitencourt has been allowed to stay because she is the government's key witness against Henderson.

Courts reporter Julie Manganis may be reached at 978-338-2521 or jmanganis@salemnews.com.