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Vinton farmer ordered to pay $150,000 in immigration suit
A Benton County dairy farmer and his company will pay $150,000 in fines following a guilty plea that he knowingly employed three illegal aliens.
Kenneth C. Birker, 62, of Vinton, received the sentence after entering into a plea deal in January, admitting to one count of engaging in a pattern or practice of knowingly employing illegal aliens. At that same January hearing, Birker also entered a guilty plea on behalf of his business, Birker, Inc., to one count of harboring illegal aliens for commercial advantage or financial gain.
In November 2001, as the president of Birker, Inc., Birker hired a husband and wife who were illegal aliens. In May 2004, Birker hired a third illegal alien who was a family member of the others. During their employment, Birker learned the husband and wife had illegally entered the U.S. from Mexico and were undocumented. He also learned the three employees did not have drivers’ licenses.
Court documents indicate that the situation was unearthed when the company unsuccessfully attempted to obtain health insurance for the workers in 2003, and when the workers attempted to legalize their status in the U.S. during 2004. All three workers were taken into custody at the farm by federal agents in 2006. The case against Birker and the farm has been ongoing since that time.
During court hearings in 2007, Jose Alfredo Tinajero-Uribe and Alejandra Sababia-Lule relinquished their attorney-client privilege and testified in material witness depositions that they contacted Miryam Antunez de Mayolo, a Cedar Falls immigration attorney, roughly two years before their arrest in order to take steps to legalize their status. They indicated they met with the attorney at her office, and 15 days later the two accompanied by Ken Birker and his sister, Bonnie Birker, met with the attorney at the farm.
While being deposed, Tinajero-Uribe testified that the attorney discussed “the form that she was going to send him so he can sign. Sarabia-Lule testified that the attorney and Birker discussed what would need to be done “so that can fix the paper legal in this country.” At some point during the farm meeting, Tinajero-Uribe and Sarabia-Lule paid the attorney half of her customary fee of $5,000.
Several months later, according to the undocumented workers, the attorney informed them that Birker had not followed through on tasks related to their case. When they approached him, the two were told that he had been too busy on the farm. When federal agents later arrived at the farm, Birker told them, according to court documents, that he was working with the attorney to apply for labor certificates and that the process was pending. Both the attorney and Birker agreed that he had never paid for her legal services in connection with the case. The attorney informed the federal agents that Birker “changed his mind regarding the labor certificates in or about March 2005 when the regulations regarding labor certificates changed.”
A court battle ensued in which the government sought to admit paperwork discovered at the farm into evidence, and Birker resisted on grounds that the documents were subject to attorney-client privilege. A magistrate judge found that Birker knew or should have known after meeting with the attorney that the workers did not have legal status, and yet continued to employ them. Given that fact, according to the judge, the government’s crime-fraud exception to attorney-client privilege applied and the documents would be allowed as evidence following an “in camera” review by the judge. The company, Birker and the attorney appealed the decision, but the decision stood.
According to farm subsidy data collected by the Environmental Working Group, Birker Inc. has collected more than $1 million in federal commodity subsidies since 1995, including $105,508 during 2009. The vast majority, or nearly $700,000, has come in the form of corn subsidies and nearly $200,000 were part of dairy program subsidies. The company has also received limited funds since 1995 for soybeans, livestock, barley and oats. About $250,000 of the federal funds were delivered as direct payments.
Birker was appointed in February 2010 to a one-year term as director of the Iowa Beef Industry Council, a trade advocacy organization.
Both Birker and Birker, Inc. were sentenced in Cedar Rapids by United States District Court Chief Judge Linda R. Reade. Birker was sentenced to one year probation. Birker, Inc. was sentenced to 1 year probation and ordered to pay a fine of $32,000 and forfeit an additional $118,000.
The case was prosecuted by Assistant United States Attorney Peter Deegan and was investigated by Homeland Security Investigations, the Vinton Police Department, and the Benton County Sheriff’s Office.