A Harvard couple pleaded guilty in Federal Court last week to the charge of paying a Bolivian live-in nanny less than the prevailing minimum wage for nearly 13 years. Two more serious criminal charges were dropped.
Richard and Martha Smalanskas of Lancaster County Road accepted the charge at a hearing before Judge Rya Zobel in U.S. District Court in Boston on Jan. 8 and agreed to pay their former employee $150,000 in restitution. The Smalanskases will be formally sentenced at a hearing scheduled for April 2.
Acceptance of the guilty plea brings to an end a case that began in September 2012, when a grand jury indicted the Smalanskases for harboring an illegal immigrant in their home. She had been hired, the grand jury alleged, “as a nanny, housekeeper, cook, and cleaner,” among other duties. The indictment also accused the couple of conspiring to hide the nanny’s status from authorities during a period beginning in 1997 and ending in 2011 when she was removed from the home. The investigation was touched off, according to an attorney familiar with the case, by an anonymous tip.
Following the indictment, the Smalanskases were arrested and released pending trial. When they were arraigned in October 2012, they pleaded not guilty. According to a story in the Oct. 5, 2012, issue of the Press, which quoted the U.S. Department of Justice, had the couple been found guilty of either charge, they could have faced 10 years in prison, three years of probation, and fines of up to $250,000 apiece.
Initial charges dropped in favor of restitution
But last week, the two criminal charges were dismissed, and instead the Smalanskases admitted to not having paid the prevailing minimum wage under the infraction provision of the Fair Labor Standards Act.
Asked by the Press why the initial charges had been dropped, U.S. assistant attorney Thomas Kanwit would say only that the government’s goal was “maximizing restitution of the victim.” But he added in a brief phone conversation, “We stand by the allegations in the indictment.” In the Jan. 8 hearing, according to a story in the Boston Globe the following day, Kanwit told the court that the Smalanskas family owed the victim roughly $301,000. Instead she had received about $2,500, he claimed. The woman, who is referred to as “CB” throughout court documents, is still living in the United States and has “legal status,” Kanwit told the Press.
Attorney for the defense Phillip Cormier of Boston said in an email that “infraction’ is the legal term used to describe the offense. “It is the lowest grade and least serious of federal criminal offenses, and is not even a misdemeanor,” he said.
The Press was not able to obtain a comment from the Smalanskases by press time, despite an exchange of voice mail messages.
During the next four months, the probation office of the court will interview the defendants and others and gather all relevant information about the case to be submitted to lawyers on both sides in a probation report. That document will also contain final recommendations for sentencing, which will be decided by the judge in the April hearing.
In the original indictment, Martha Smalanskas and Richard Smalanskas were accused of using a fake birth certificate to acquire a visa to bring a Bolivian woman to the United States to work as their nanny. The indictment alleged that the Smalanskases kept the nanny in the United States to work for them and prevented her return to Bolivia by taking away her passport and telling her that, according to the indictment, “[I]f she left the United States she would be unable to return and would never see their children again.”
The indictment also alleged that the couple had told the nanny not to speak to other nannies or parents when she was out with the children, refused to teach her to drive, required that she ask permission to leave the house, and refused to provide her opportunities to learn English.
Long hours, low pay
The Smalanskases promised the nanny a monthly salary of $100—later $150—for her work, which included cooking, cleaning, and childcare for three children for up to 14 hours a day, five to six days a week. However, they did not always pay her, the indictment says. According to the indictment, the Smalanskases kept a ledger that showed they owed the nanny $11,919.55, as of January 2010.
“It was the object and plan of the conspiracy for the defendants to harbor an illegal alien and to have [her] perform, and continue to perform, domestic work and nanny services without paying her a fair wage, all for the defendants’ private financial gain,” the grand jury indictment said.
Martha Smalanskas is a Bolivian native and a naturalized American citizen, according to the court documents. The nanny worked for the Smalanskases in Bolivia for about two years, when she was 16, the indictment says.
After the Smalanskases left Bolivia and settled in Massachusetts, the documents alleged, they arranged to have the nanny brought to the United States to work for them. The couple had a false birth certificate made for the nanny that used Martha Smalanskas’s maiden name as the nanny’s last name, giving the impression that the nanny was Smalanskas’s niece, according to the indictment. The Smalanskases again misrepresented the nanny’s name on an application for a B-1 Visitor nonimmigrant visa, which was issued on Dec. 5, 1997, the indictment says. When that visa expired on Jan. 13, 1998, the nanny became an illegal immigrant, according to the indictment.
The Smalanskases continued to employ the nanny until May 2011, first in Sudbury and later in Harvard, the charges alleged. On April 1, 2008, the indictment says, the nanny told the Smalanskases she needed to return to Bolivia because her father was ill, “but the defendants still refused to return [the nanny’s] passport to her or otherwise assist her in getting back to Bolivia.”
