Adoption fraud sentence ‘just’
http://hjnews.townnews.com/articles/2009/03/08/news/news02-03-08-09.txt
Adoption fraud sentence ‘just’
Federal prosecutor Brett Tolman poses in his U.S. Attorney's office Wednesday, Feb. 4, 2009, in Salt Lake City. Tolman, who is investigating the Crandall Canyon mine collapse, said greed or simple negligence isn't enough to warrant criminal charges, and he wasn't inclined to prosecute "bad business" practices, either. He said he was still looking deeper for evidence that could be brought before a grand jury. (AP Photo/Douglas C. Pizac)
By Charles Geraci
Published:
Sunday, March 8, 2009 1:42 AM CST
When former Wellsville residents Scott and Karen Banks escaped prison time last month during their sentencing for participation in an adoption fraud scheme, many around the state and the world were shocked.
Instead of seeing the inside of a prison cell, the Bankses — accused of tricking Samoan parents into giving up their children to U.S. adoptive families — were sentenced on misdemeanor charges, put on five years probation and ordered to contribute to a trust benefiting the Samoan children.
U.S. District Judge David Sam also ruled a lifetime ban on doing international or domestic adoption work.
The judge honored a plea agreement crafted by prosecutors in the case.
U.S. Attorney for Utah Brett Tolman oversaw prosecution efforts, and in an exclusive interview with The Herald Journal, Tolman said he believes the decision not to seek prison time for the Bankses — who operated the now-defunct Focus on Children adoption agency from their Wellsville home — was the right one given the unique circumstances of the case.
“I believe there has been just punishment,” Tolman said. “Their business has been dismantled. They are no longer in the adoption business, which is the only livelihood they’ve known for many years. They are banned from entering into this industry for their lives. They will be placing money and significant resources into the trust for many, many years. They are individuals who have suffered, you know, the public outcry and suffered through I think very difficult times.”
He added, “In this case, the punishment was appropriate given the totality of the circumstances.”
A 135-count federal indictment unsealed in February 2007 alleged the Bankses and three other defendants participated in illicit activities involving the adoption of dozens of Samoan children between March 2002 and June 2005. The indictment alleged fraud, as well as immigration violations.
According to the indictment, parents in Samoa were duped into giving up their children under the premise that the youngsters would receive an American education, return to the country at age 18 and remain in contact with their birth parents. Adoptive parents in the United States reportedly were told they were adopting orphans living in dire conditions or children abandoned by families unable to care for them.
Dozens of felony charges in the indictment were ultimately dropped by prosecutors as part of a plea agreement, and each of the defendants pleaded guilty in January to varying counts of the same misdemeanor charge — aiding and abetting the improper entry of an alien.
Tolman contends that if prosecutors would have pushed for a trial, instead of forging a plea agreement, the best interests of the children would not have been served, and valuable information regarding adoption practices in various regions of the world would not have been gleaned.
“If we had pursued it to trial, we would not have had the cooperation of the defendants to be able to establish the trust, to be able to open lines of communication between birth families and adoptive families,” Tolman said. “We would not have been able to learn information about the other adoption processes that are going on in the country and in the rest of the world — specifically, Guatemala, Russia, Samoa and other areas. ... And so that risked future adoptions going forward, which put future children who may be caught in something like this at risk.”
As a result of getting certain information in the Focus on Children case, the U.S. Attorney’s Office in Utah is currently looking at the possibility that other crimes related to adoptions have been committed in the state, according to Tolman.
In a sentencing memorandum submitted to Sam, prosecutors state that none of the birth parents in Samoa wanted the Bankses to go to prison, adding that “many of them indicated that they had forgiven the defendants.”
Some adoptive parents in the United States, however, preferred prison time for the Bankses, while others did not.
“Now, if all of the birth parents and all of the adoptive parents were clamoring for a prison sentence, that is certainly a factor that we (would) consider,” Tolman said, noting the “children themselves are the most significant factor in reaching this resolution.”
The Bankses and other defendants in the case must pay into a trust with one of the key goals being to foster communication between the birth parents and adoptive families.
Jini L. Roby, associate professor of the School of Social Work at Brigham Young University, will voluntarily administer the trust.
Tolman said Scott Banks is currently employed in Nevada; he did not know whether Karen Banks was employed.
Since the defendants have not yet provided all of the financial records the court needs to determine their monthly contributions to the trust fund, the exact dollar figures will be finalized at a later date.
It is also to be determined for how many years the defendants will contribute to the trust, but Tolman believes it will be for a period of five years “at the very least.”
In working on a resolution to the case, prosecutors made “multiple” visits to Samoa, said Tolman. On some of the trips, the purpose was to meet with birth parents about the proposed resolution. Attorneys also delivered letters and photographs from many of the adoptive parents.
“The interests of the Samoan birth families was quite consistent; their primary concern was the well-being of their children,” reads the sentencing memorandum. “To this end, each birth parent hoped for continued contact with their children, but due to economic conditions, many of them did not have a mechanism to even receive mail, let alone e-mail.”
For that reason, the first funding priority from the trust will be to set up post office boxes for the Samoan parents.
The adoptive parents also had concerns; many of them felt that if the case went to trial, it would somehow result in the birth families or the government taking the children from them.
But that fear — at least the portion pertaining to the government — was not founded, according to Tolman.
“We have no intention of doing that and never have,” he said. “Our intention was to stop a criminal enterprise, misrepresentations and fraud from happening in the adoption area,” Tolman said.
He understands that many may be frustrated with the sentencing outcome in the case.
The Herald Journal has received e-mails and several comments on its Web site questioning why the Bankses did not receive prison time.
“It really kills me that ... the Bankses get away with no jail time,” wrote one individual in an e-mail. “The damage they have done to the families in Samoa and here in the States is almost irreparable. The damage to the trust of the Samoan people, let alone their government, will take years to repair.”
Tolman said he understands sentiments such as those, adding, “I stand behind my decision.”
“They were not without punishment, and they were not without consequences that came as a result,” Tolman said. “When the decision came between the children at issue here and solely the punishment of the individuals, I chose the children.”
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