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Participants in the debate over illegal immigration will be paying attention to Wednesday’s arguments at the U.S. Supreme Court about North Georgia’s Mohawk Industries. The Calhoun-based carpet maker has asked the justices to overturn a ruling by the 11th U.S. Circuit Court of Appeals in Atlanta allowing Mohawk workers to bring a civil racketeering case against the company claiming that it hired illegal immigrants to keep wages down. But beyond the policy implications of the court’s ruling, the case at its heart is about Mohawk, most of whose more than 30,000 employees work in northwest Georgia. The company argues the RICO law, short for Racketeer Influenced and Corrupt Organizations, does not support the plaintiffs’ case. But if the justices rule against them, the Mohawk team also is looking at a similar case against Tyson Foods tried in 2003 that offers hope that Mohawk would prevail if forced to go to trial. The case before the Supreme Court Wednesday is a class-action suit brought under RICO by private individuals, while the 2003 trial of Tyson was a criminal prosecution on charges of conspiracy, fraud and bringing in and harboring of aliens. But the facts alleged by the workers suing Mohawk are similar to the charges federal prosecutors made against Tyson � that the company knew that it was hiring illegal immigrants. In building the case against Tyson, government agents posed as people smugglers, and at trial the government tried to show that people whom the undercover agents delivered to employment agencies and Tyson employment offices were in the United States illegally � and that Tyson officials knew it. Senior U.S. District Judge R. Allan Edgar of Chattanooga, Tenn., dismissed several counts, and, after sitting through 25 days of trial, a jury acquitted on the rest. Juan P. Morillo of the Washington office of Sidley Austin Brown & Wood, who represented Tyson and is one of Mohawk’s lawyers, said that in seeking to prove that Tyson knowingly hired illegal workers, the government put on witnesses who testified that workers appeared to be Hispanic and witnesses who estimated how many people were working illegally. “The implication was that if you were Hispanic, you were illegal,” said Morillo. Morillo said the government’s failure in Tyson exemplifies the difficulty the Mohawk plaintiffs would face in proving their case. “Because their proof is going to be so bad and so weak, they’re going to have to use these extrapolation methods,” he said. Assistant U.S. Attorney John P. MacCoon tried the case against Tyson. While acknowledging that the government’s case against Tyson was a circumstantial one, MacCoon said that he thought a different jury might have gone the government’s way. According to MacCoon, law enforcement caught people at the top levels of Tyson plants on tape “ordering up illegals” carrying fake personal documentation, and those plant officials testified at trial that Tyson executives knew about those practices. He said he did not consider the Tyson verdict “predictive of anything.” Instead, he said, it was his understanding that the jury decided based on its feelings that such practices were necessary and commonplace given lack of worker availability. Other attorneys involved in the case had different theories about why the government lost its case. “The reason they lost was there was a great separation from your corporate bosses … in the top tier of the company versus the decisions made at plant level and regional level just to find warm bodies and put them in there,” said Michael Friedman, an Atlanta attorney who represented a government witness and attended part of the Tyson trial. Friedman said that the company had a system in place to make sure each worker provided a valid Social Security number, and plant officials tried to get around that system. One of Morillo’s partners at Sidley Austin, Thomas C. Green, was lead counsel for Tyson in the criminal case and also is on Mohawk’s defense team. Green agreed prosecutors had a hard time proving that Tyson officials knew of any hiring of illegal workers, citing the company’s appropriate polices and procedures. Green said that the government looked “awful” before the jury because it was the moving force in delivering illegal workers to employment agencies and Tyson plants. He said government agents “essentially abandoned” workers they transported to employment offices � “if Tyson doesn’t hire them, they’re just left to float on the ground.” “The government had to wrestle with the fact that its own wrongdoing, its own shenanigans, were worse than what the company did,” said Green. Despite the government’s failure in the Tyson prosecution, several lawsuits over alleged practices of hiring illegal workers were filed in its wake, including a civil case against Tyson and the Mohawk case before the Supreme Court Wednesday, both brought by Howard W. Foster of Johnson & Bell in Chicago. Attorneys at Atlanta’s Bondurant Mixson & Elmore also represent the Mohawk plaintiffs. One of those attorneys, John E. Floyd, pointed to the complaint when asked how he was going to prove allegations that Mohawk knowingly hired illegal workers. “We investigated this case extensively before it was filed,” said Floyd. The 36-page complaint alleges Mohawk employees have gone to the U.S.-Mexican border near Brownsville, Texas, to recruit illegal aliens and transport them to North Georgia. According to the complaint, Mohawk also has knowingly accepted drivers’ licenses and other documents that depict someone other than the person presenting the document as proof of eligibility for employment. Floyd said while he was not intimately familiar with the Tyson prosecution, he thought it had little relevance to the Mohawk suit. The specifics of the cases are different, said Floyd, adding that as a civil complainants, the Mohawk plaintiffs have to prove their case by a preponderance of the evidence, not the much higher “beyond a reasonable doubt” hurdle faced by the Tyson prosecutors. One element of the Mohawk case certainly not present in the Tyson prosecution is that the plaintiffs will have to prove that they suffered damages as a result of Mohawk’s actions. The complaint alleges that by employing and harboring illegal workers, Mohawk increased its pool of potential workers, thereby depressing the wages of all of its hourly workers, including those legally eligible to work. “That theory is a little goofy on its face,” said Sidley Austin’s Green, “because if you’ve got a unionized plant, you’ve got wages, you know, there’s collective bargaining.” But the complaint against Mohawk alleges that Mohawk’s hiring of illegal workers “deprive[s] Mohawk’s hourly workforce of any individual or collective bargaining power” because Mohawk’s allegedly illegal workers “are beholden” to the company. At any rate, said Morillo, if the plaintiffs cannot prove that any illegal hiring adversely affected their wages, “they lose.” Of course, to move forward on the federal RICO claims, the plaintiffs first need to persuade the Supreme Court not to overturn the 11th Circuit decision. The argument is limited to Mohawk’s contention � a loser both before U.S. District Judge Harold L. Murphy and the 11th Circuit � that, even if the plaintiffs can prove their factual allegations, they cannot recover under RICO because Mohawk and its recruiters cannot together constitute an “enterprise” under RICO. The Supreme Court case is Mohawk Industries v. Williams, No. 05-465. The 11th Circuit decision at issue is No. 04-13740 (11th Cir. June 9, 2005). Daily Report reporter Alyson M. Palmer can be reached at [email protected]

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