Full opinion text
MEMORANDUM DECISION AND ORDER SPATT, District Judge. This may be the final chapter — at least at the trial level — of the continuing Wetterer saga, which has gone on for almost ten years and traversed two continents. It is a disturbing tale. In the 1970’s, Wetterer, a United States citizen and veteran of the Vietnam War, settled — permanently, as it turned out — in Guatemala, where he founded an orphanage for homeless boys called “Mi Casa.” From then to the present, Wetterer has been Mi Casa’s director, organizer and policy-maker. In this capacity, Wetterer mailed newsletters to potential donors in the United States and abroad in an effort to raise funds for the Mi Casa orphanage. These newsletters painted a glowing portrait of Mi Casa as a wholesome, safe and secure environment for the boys in Wetter-er’s care. In reality, however, Wetterer physically abused and humiliated many of these boys by ordering them to strip naked in front of their peers and striking them on their bare buttocks with a paddle. Wetter-er’s “favorites” among these homeless children fared even worse: he sexually molested them. When the United States was frustrated in its efforts to extradite Wetterer for the crime of mail fraud stemming from his fund-raising efforts, the Government initiated this civil forfeiture action against his American bank accounts. This opinion embodies the Court’s findings of fact and conclusions of law after a non-jury trial. I. BACKGROUND John Hugh Wetterer, a former Long Island resident, is a Vietnam War veteran who founded an orphanage in Guatemala City in 1976 called Mi Casa. Wetterer was assisted in financing the operation of the orphanage by the American Friends of Children (“AFC”), an organization he and several others founded on Long Island to raise money to serve the needs of children. From 1976, when Wetterer opened Mi Casa, to 1988, AFC’s treasurer, Daniel Mack-ey, sent Wetterer over one million dollars in donations to assist him in housing, clothing, feeding and educating the boys of Mi Casa. Mackey received these donations by mail at a Post Office box he set up and maintained for that express purpose in Massapequa, New York. He deposited the donations in the Chase Manhattan Bank of New York, and then, pursuant to Wetterer’s instructions, made out checks payable to “John Wetterer” that were forwarded to Bank of America account no. 05616 in Miami, Florida. Wet-terer made arrangements to transfer the money from Miami to Guatemala. Although the Bank of America account was maintained in the name of Mi Casa, Wetterer was the sole signatory on the account. Wetterer sent newsletters about Mi Casa to his supporters in the United States and elsewhere, including France. These newsletters portrayed Mi Casa as a normal, well-run orphanage, where abandoned, impoverished and neglected boys were given a chance for a better life by receiving shelter, clothing, food, medical care and education. Included in these newsletters were envelopes for supporters to send donations to the Post Office box Dan Mackey maintained. Mackey received donations to Mi Casa in these envelopes as a result of the newsletters. In the newsletters, Wetter openly discussed the use of the mails to send financial or other support, repeatedly thanked donors for the financial support he received from them, and from time to time, mentioned the need for financial support. In late 1987, one of the boys who lived at Mi Casa, Manuel Bravo, revealed to his American sponsor, Mary Tyre, that Wetterer had sexually molested him. A similar revelation was made several months later by another boy from Mi Casa, Leonel Piedrasanta, who also was staying with Mary Tyre, Mary Tyre, in turn, contacted the television news program Sixty Minutes, which, in the Fall of 1988, was preparing to air a complimentary segment on Mi Casa and the work of John Wetterer. Sixty Minutes hired its own expert, Dr. Simon Miranda, to evaluate these claims of sexual abuse. In late November 1988, Sixty Minutes journalist Diane Sawyer confronted Wetterer with the allegations of sexual abuse. Shortly thereafter, AFC stopped depositing donations in the Bank of America account and ended its financial support of Mi Casa. Wetterer then arranged to receive donations for Mi Casa through a Post Office box in Spring, Texas. On February 19,1989, Sixty Minutes aired its segment on Mi Casa, including Sawyer’s interview with Wetterer and the allegations of sexual abuse. Wetterer denied the allegations of sexual abuse orally and in his newsletters. According to Mi Casa’s, records introduced into evidence as Def.Ex. W, during the period from January 4, 1989 through November 12, 1990, a total of approximately $1,111,073.69 in donations were sent to Wet-terer and Mi Casa. On September 14, 1990, a criminal complaint charging Wetterer with, among other crimes, mail fraud, was filed in the Eastern District of New York. On the same date, a warrant was issued for Wetterer’s arrest. Wetterer was accused of knowingly devising a scheme or artifice to obtain money or property by false pretenses and representations and in using the U.S. mails to execute his scheme, in violation of 18 U.S.C. § 1341. On February 12, 1991, Wetter was indicted and charged with mail fraud and a related crime. On January 22, 1991, the United States commenced this civil action, seeking the forfeiture of certain bank accounts held in the name of the Asociación or Wetterer pursuant to 18 U.S.C. § 981. The in rem complaint listed as the alleged crimes underlying the basis for the seizure mail fraud, 18 U.S.C. 1341, and inducing a person to travel in interstate or foreign commerce for the purpose of engaging in criminal sexual activity, 18 U.S.C. § 2422. An arrest warrant in rem authorizing the seizure of the bank accounts was issued that same day. On February 6, 1991, the Asociación that allegedly operates Mi Casa filed a claim to the defendant funds, stating that these funds were deposited for the use and benefit of the Asociación. On September 19, 1995, this Court found that the Asociación is the alter ego of Wetterer and struck its claim. United States v. Funds Held in the Name or for Benefit of John Hugh Wetterer, 899 F.Supp. 1013 (E.D.N.Y.1995). This case was tried by the Court beginning on February 19,1997 and concluding on February 6,1998. II. THE FORFEITURE COMPLAINT On January 22,1991, the Government commenced this civil forfeiture action pursuant to 18 U.S.C. § 981, and seized the funds on deposit in Bank of America account number 05616 in the name of Mi Casa; Sterling Bank account number 907-103 in the name of Mi Casa; and Sterling Bank account CD 15590 in the name of John Wetterer. As of February 1997, the aggregate amount of money in these accounts is, according to the Government, the sum of $109,327.22. The complaint alleges that these accounts were utilized in or constitute the proceeds of violations of federal law. It is alleged that Wetterer, the operator of an orphanage in Guatemala, “regularly and systematically molests and sexually abuses the minor boys who reside there.” The complaint further alleges that Wetterer finances the operation of the orphanage, known as “Mi Casa,” through contributions solicited throughout the United States and that “These solicitations are false and fraudulent insofar as Wetterer represents that ‘Mi Casa’ provides a healthy and stable environment for its residents, when, in fact, he molests and sexually abuses the boys who reside there.” In sum, the complaint supports the forfeiture claim by the crime of money laundering — namely, engaging in financial transactions involving funds obtained by false mailed solicitations. III. PRIOR PROCEEDINGS At the time this action was commenced, an arrest warrant in rem authorizing the seizure of the bank accounts was issued. In response to the seizure, the Asociación filed a claim to all funds seized. All of the seized accounts are in the name of the Asociación except the Sterling Bank account number CD 15590, which is in Wetterer’s name. The Asociación contends that it is the owner and entitled to the money in the Wetterer account. In response to the Asociacion’s claims, the Government filed a motion to strike the claims on the ground of lack of standing. The Government also contended that the Asociación could not file a claim for funds held in Wetterer’s name because he was a fugitive and was disentitled to contest any matter in the forfeiture ease. The Asocia-ción countered that it had standing because it was a legal entity separate from Wetterer, and that his acts could not be attributed to the Asociación. In response, the Government then contended that the Asociación was Wetterer’s alter ego and a shell entity which he completely dominated and controlled in order to perpetuate his fraudulent scheme. Thus, the Government reasoned, sinee the Asociación was Wetterer’s alter ego, it was also disentitled to file a claim because of Wetterer’s fugitive status. The issue of whether the Asociación was the alter ego of Wetterer, and thus barred from pursuing this claim was referred to Chief United States Magistrate Judge A. Simon Chrein, for an evidentiary hearing. After a hearing, Judge Chrein held that the Asociación is the alter ego of Wetterer and recommended that its claim be stricken. In a decision rendered on September 18, 1995, in United States v. Funds Held in Name or for Benefit of John Hugh Wetterer, 899 F.Supp. 1013 (E.D.N.Y.1995), this Court essentially affirmed Judge Chrein’s conclusions that the Asociación is Wetterer’s alter ego and held “that the Asociación is disentitled from pursuing its claim in this proceeding, because of the control over the seized bank accounts and the Asociacion’s banking transactions exercised by Wetterer, who remains a fugitive. Accordingly, as modified herein the recommendation of Judge Chrein to strike the claim of the Asociación is adopted, and he Asociacion’s claim is stricken.” However, in Degen v. United States, 517 U.S. 820, 116 S.Ct. 1777, 135 L.Ed.2d 102 (1996), the Supreme Court disapproved of the sanction of disentitlement as an “excessive response.” Id. at 829, 116 S.Ct. at 1783. Accordingly, based on Degen, this Court’s decision applying the disentitlement decision to strike the Asociacion’s claim is vacated. However, the Court’s decision that the Aso-ciación is the alter ego of Wetterer stands. The Court then proceeded to determine the validity of the Asociacion’s claims on the merits. The issues in the ease are: (1) Did sexual or physical abuse occur at Mi Casa?; (2) If so, as a result of such sexual abuse by Wetterer, did such conduct, coupled with the newsletters soliciting funds, constitute mail fraud?; (3) Did the Government fulfill the requirements under the forfeiture laws so as to permit seizure of the accounts at issue?; (4) Was the Asociación the “innocent owner” of the funds?; (5) Was there a sufficient nexus between the alleged mail fraud and the subject bank accounts?; and (6) Would forfeiture of the accounts at issue constitute an excessive fíne? The claimants deny that any sexual abuse took place; deny that there was probable cause that Wetterer committed mail fraud; and seek to have the seized funds released to them. IV. THE TRIAL — FINDINGS OF FACT This opinion and order includes the Court’s findings of fact and conclusions of law as required by Fed.R.Civ.P. 52(a) and 65(d). See Rosen v. Siegel, 106 F.3d 28, 32 (2d Cir.1997); Colonial Exchange L.P. v. Continental Cas. Co., 923 F.2d 257 (2d Cir.1991). Mary Tyre is a resident of and a businesswoman in Miami, Florida. She is familiar with Mi Casa having visited there until November 1988. Tyre sponsored children at Mi Casa. She received a monthly newsletter from Mi Casa with a return envelope addressed to the American Friends of Children. In response to the mailings, at times she sent money and clothes to the AFC and at times directly to Guatemala. Being in the children’s clothing business, she sent and delivered clothes free of charge to the boys at Mi Casa. During this period Tyre developed a mother/son relationship with Manuel Bravo, one of the boys at Mi Casa. With permission of Wetterer, Bravo spent time with Tyre in Miami Beach in 1986 and 1987. During the visit in December 1987, Manuel told her that “Uncle John” watched the boys when they were in the shower and fondled and caressed them. In subsequent conversations Manuel told her that “Uncle John would invite them into his apartment for a meal and then a shower and then ... took him to bed ... [for] fondling, masturbation” (Tr. at 24). Manuel made Tyre promise that she would not tell anyone about what occurred to him, because he didn’t want to cause any problem for Uncle John. In 1987, another resident of Mi Casa, Leonel Piedrasanta, visited and stayed with Tyre. In 1988 Leonel asked her “What I thought of Uncle John’s making love with the boys.” (Tr. at 26.) Leonel then described “much of the same thing that Manuel has said to me.” In November 1988, Tyre called the television program Sixty Minutes, which was preparing a complimentary program on Mi Casa. She asked them not to air their program until they talked to Manuel. On cross-examination, Tyre testified that she visited Mi Casa 1985,1986,1987 and 1988 and it was her impression that the facilities were providing services to children that needed them. Based on that impression she sent clothing and financial donations to the facility. Also, Tyre was on the Mi Casa mailing list and none of the mailings requested money. However, Tyre sent cash to the facility through her friend Hanna Colombey, a flight attendant. In addition, Tyre testified that in her visits to Mi Casa she never saw any evidence of sexual abuse and it was her impression that “it was a very good place.” At Mi Casa, no one ever told her about sexual abuse of the boys. She observed the children in classes and in recreational activities such as soccer, baseball and swimming. However, she never stayed overnight, at a time when Wetterer was the only adult present. During her visits, no one ever approached her to complain of anything at Mi Casa. Also, even after Manuel made these allegations, she allowed him to return to Mi Casa. The Court notes that Tyre had no personal knowledge of any sexual abuse and relied entirely on statements to her by Manuel and Leonel. United States Postal Inspector John McDermott was a child pornography specialist. In 1989, he commenced an investigation of alleged child abuse at Mi Casa by Wetter-er, after the Sixty Minutes program in February, 1988. Wetterer sent newsletters to contributors almost monthly between 1985 and the end of 1988. The newsletters were on the letterhead of “American Friends of Children, Inc.” or “Mi Casa American Friends of Children, Inc.”, both containing a Guatemalan address. The newsletters enclosed a small payment envelope. Also intro-dueed in evidence were a series of cheeks drawn on the account of American Friends of Children, Inc. to the order of John Wetterer and deposited by Wetterer in a Bank of America account in Miami, Florida in the name of the Asociación. Wetterer received approximately $520,000 from the American Friends of Children from March 1986 through November 1988. The Court finds that Wetterer solicited funds by newsletters sent to patrons in the United States. The funds were received by the American Friends of Children, Inc. and then sent to Wetterer for his use at Mi Casa. Apparently, Wetterer was the only signatory on the Aso-ciación checking accounts. McDermott testified that the American Friends of Children, Inc. was a loose knit organization of volunteers on Long Island that attempted to help Wetterer in the operation of Mi Casa. Wetterer was on the Board of American Friends of Children and Daniel Mackay, now deceased, was the treasurer. After the public allegations of sexual abuse at Mi Casa, Wetterer continued to mail newsletters between 1989 and 1991. In the newsletters these allegations were discussed and refuted by Wetterer. People continued to contribute to Mi Casa notwithstanding the allegations of sexual abuse. These newsletters contained preprinted return envelopes addressed not to American Friends of Children but to a post office box in Spring, Texas. McDermott made out a criminal complaint against Wetterer and, on September 14, 1990, a warrant was issued for his arrest. He called Wetterer in Guatemala on the telephone and asked him to surrender in the Eastern District of New York and was told “He was much too busy caring for 500 boys and he couldn’t possibly leave.” (Tr. at 89). On February 12,1991, Wetterer was indicted and charged with mail fraud and the interstate transportation of funds stolen by fraud. To McDermott’s knowledge, after the issuance of the criminal complaint, Wetterer has never personally appeared in the Eastern District of New York. McDermott testified that the basis for the mail fraud is that Wetterer misrepresented Mi Casa as a safe and healthy environment at the time that sexual abuse was being perpetrated by him at Mi Casa. In addition, and not alleged in the complaint, Wetterer is presently charged with beating the children, which, according to McDermott, also would belie his representations of a healthy and safe environment at Mi Casa. McDermott made no attempt to interview any boys in Guatemala. In the United States, he interviewed six former residents and two adult volunteers of Mi Casa, namely Mary Tyre and Hannah Colombey, and some contributors to Mi Casa. He also interviewed two medical professionals, Dr. Miranda and Dr. Samek, who told him they thought Wet-terer was sexually abusing the boys under his care. McDermott also spoke to six boys; namely, Jose Luis Lutin, Leonel Piedrasanta, Manuel Bravo, Joel Salas, Jerry Gomez and “Robert” Morgan. Piedrasanta and Bravo apparently are still in the United States, having applied for asylum. McDermott did not speak to any teachers in Mi Casa, who are daytime employees, nor did he visit Mi Casa. As to the newsletters which are a basis for the mail fraud charges, they came from Wet-terer and were received in the United States in envelopes containing Guatemalan stamps. The return envelopes were addressed to a post office box in Massapequa. Mackay would gather the envelopes and deposit the checks in a bank account of the American Friends of Children and then the funds were forwarded to Wetterer. Wetterer was a signatory on the American Friends of Children account. As stated above, there was a Miami bank account bearing number 05616. McDermott believes the name on the account was Mi Casa and Wetterer was a signatory on the account. According to McDermott, substantial sums of money in the Miami account was paid to and for the benefit of Wetterer’s sons and to Jeffrey Waller, Wet-terer’s attorney. Questioned about the alleged misrepresentations in the newsletters, McDermott pointed to the following language: May 1985 Newsletter “They were also very happy.” July 1985 Newsletter “Everything fine here. Same little boy activities.” August 1985 Newsletter “So much has changed over three years; so many children have been helped.” May 1987 Newsletter “Boys all OK.” October 1987 Newsletter “All fine here.” June 12,1988 Newsletter “Everything is fine here ... So many people have this romantic picture of good old Tio Juan going from bed to bed tucking in each young fellow.” August 25,1988 Newsletter “Well, in closing a thank you for helping me during these past twelve years — a thank you for helping me to help so many young boys have a better future.” December 1988 Newsletter “Been telling you to watch Sixty Minutes a number of times. Now sorry that I did — seems that, if the piece shows, it will be negative and very damaging. A false accusation is no less hurtful and I guess knowing that we had no ‘skeletons in the closet’.” May 1989 Newsletter “Pleased to say that each organization has arrived at the exact same conclusion and found our home to be a safe, sane and stable place for the boys with absolutely no evidence, whatsoever, of child abuse.” Pl.Ex. 2 (emphasis supplied). The Court finds that the representation in these newsletters were intended to convey the impression that Mi Casa is a “safe, sane and stable” place for its boys. The Court further finds that such misrepresentations did induce contributors to send funds which eventually were received by Wetterer at Mi Casa. The testimony of Dan Mackay was taken in a hearing before Chief Magistrate Judge Chrein on May 12, 1993. Mackay died prior to the trial and his testimony at the Chrein hearing was introduced in evidence. Mackay was Director of Security at the Breezy Point Cooperative and formerly was a member of the New York City Police Department. He and his wife first knew Wetterer in 1970 or 1971 in connection with his orphanage. They were interested in adopting a child themselves and visited the prior orphanage operated by Wetterer. They eventually formed an organization called the American Friends of Children. Their organization did fund-raising and also were “funneling checks.” It had no other charitable activities other than Mi Casa. The AFC sent checks to Wetterer from 1977 through 1988. The last one was sent on November 8, 1988. In all, the AFC raised and sent to Wetterer a total sum in excess of one million dollars. The cheeks were made payable to John Wetterer and deposited in his account in Miami in the Bank of America account number 05616. The procedure for raising money was that Wetterer sent to the sponsors a monthly update letter “saying how things were going and in that letter was an envelope which had American Friends of Children with our post office box in Massape-qua so they can make their donations.” When the AFC found out about the allegations of sexual abuse they “froze the funds.” The AFC decided to conduct an independent investigation and hired a psychologist, Dr. William Samek, to go to Guatemala. Mackay also went to Guatemala and interviewed Wet-terer. At first Wetterer said he would not allow an investigation nor would he allow the children to be questioned. While at one point Wetterer agreed to permit Samek to do the investigation, after four hours, Wetterer told Samek to leave. Wetterer told Mackay that “he runs the orphanage [and] he would not allow anybody in there to conduct interviews.” Wetterer also told Mackay that he “doesn’t need any help from a gringo like myself in New York or anybody on the board” and “he doesn’t need any influence from us up in the United States.” The Sa-mek report regarding the abortive investigation was not introduced in evidence at the Chrein Hearing. There came a point when AFC decided to dissolve and cease all funding activities to Mi Casa. During this entire period Mackay was not aware that Wetterer was depositing the checks from AFC into a corporate account and he never heard the name Asociación Los Amigo Del Los Ninos until 1988. In sending more than a million dollars to Wetterer, they believed in him and thought he was doing a good job in raising the boys of Guatemala. Significantly, Mackay testified that if, during the period of 1984 to 1988, he had any reason to believe that Wetterer was molesting children in Mi Casa, he would not have sent him any money. At this point in the trial, the Government rested as to the three accounts seized by the Government on January 23,1991, and held in interest-bearing accounts at the various banks. The charge of transportation for illegal sexual activities was withdrawn by the Government. The claimant moved to dismiss the forfeiture based on mail fraud on the grounds that (1) the Government failed to establish mail fraud in that the newsletters did not contain false or fraudulent misrepresentations, and (2) Mackay and AFC were not induced to make the financial contributions by any fraudulent misrepresentations by Wetterer, but rather because of their long relationship with Wetterer. At the end of the Government’s case, the Court made certain rulings. Bearing in mind that an indictment charging mail fraud was returned, the Government established that there was probable cause that Wetterer committed mail fraud in the manner set forth in the indictment. The Court also ruled that the Government has shown a nexus between the seized bank accounts and the mail fraud, namely, that there was probable cause to believe that the seized funds represent proceeds traceable to the mail fraud. The Court reserved decision as to the wire fraud charges. Once the Government established probable cause that mail fraud was committed by Wet-terer and that there was a nexus between the criminal activity and the seized bank accounts, the burden of proof shifted to the claimants who had the obligation to prove, by a preponderance of the evidence, that either: (1) despite the presumption of probable cause, there was no sexual abuse at Mi Casa by Wetterer and the bank accounts at issue were not the proceeds of mail fraud, or (2) the claimants were “innocent owners.” THE DEFENDANTS’ CASE Luz Estrada worked at Mi Casa from 1981 to 1991 as a secretary in charge of the office. She worked from 8:00 a.m. to 6:00 p.m. from Monday to Friday and a half day on Saturday. During the eleven years she worked at Mi Casa, no child or staff member ever told her of a problem of sexual abuse. No doctor ever wrote or advised her of a problem of sexual abuse. Estrada described the routine at Mi Casa with regard to meals, clothing, medical attention, education and sports. In her opinion, Mi Casa provided the boys with a safe, wholesome environment. This was especially important because some of the boys at Mi Casa came off the streets without food or a place to sleep. Of course, Estrada worked at Mi Casa during the day, and she conceded that she had no personal knowledge of what happened at night. Dr. Phyllis Kaplan has a doctorate in clinical psychology and special education and is a member of the American Board of the Aso-ciación. She is coordinator in the Special Education Department at California State University. Kaplan worked with sexually abused children and has written books on the subject. She first met Wetterer in California in April 1975. Wetterer has been her friend and colleague for more than twenty years. Wetterer was a soldier in Vietnam who was wounded twice. He helped to bring children from Vietnam to the United States. Kaplan had numerous contacts with Wetterer during this period. When Wetterer went to Guatemala to set up an orphanage, she assisted him by sending educational equipment. Kaplan also went to Guatemala once a year. She sponsored one of the boys at Mi Casa by sending money for his support on a monthly basis. Kaplan herself has ten adopted children. Kaplan contributes money to Mi Casa and receives the newsletters. However, she testified that the contributions are not based on the newsletters. She has visited Mi Casa approximately 25 to 30 times, including visits of two to three weeks and longer. During her visits she spent time with the children who confided in her. She also spent many evenings at Mi Casa during which she slept there with her own children. Kaplan testified that no children at Mi Casa exhibited symptoms of sexual abuse and she never saw any signs of physical abuse. No child ever indicated to her that he was a victim of sexual abuse, including adult former residents of Mi Casa. In March 1989, after the Sixty Minutes telecast, she went to Mi Casa to try to remove Wetterer, if the allegations were true. However, in her opinion, there was no sexual abuse at Mi Casa and it was a safe and wholesome environment. There were as many as 70 staff members at Mi Casa and no one told her of any sexual abuse. She saw volunteers, social workers and priests at Mi Casa. Kaplan saw displays of affection between Wetterer and the children such as holding hands crossing streets and hugging. She saw children in Wetterer’s living area watching television, sometimes 50 at a time. She also saw some boys sleeping in his quarters. According to Kaplan, sexually abused children keep the abuse a secret for a while but as the abuse goes on they find someone they can trust to tell. Based upon her experience in the field of sexual abuse of children and her personal observations at Mi Casa and after talking to the children and the staff, Kaplan found no evidence of sexual abuse at Mi Casa. According to Kaplan, Mi Casa is a happy home and offers children a better chance for a better future. On cross-examination, Kaplan stated that she is not a licensed clinical psychologist. She stated that Wetterer had a position of authority and trust at Mi Casa. Further, while Kaplan was aware of Miranda’s adverse report as to sexual abuse, she made no effort to talk to him. Also, she talked to Leonel and Manuel but not about the alleged sexual abuse. Nor did she speak to Samek, who was charged by AFC to investigate this matter, although she tried to do so. Significantly, Kaplan testified that “some people” relied on the newsletters in sending their donations to Mi Casa. In this regard, the Court notes the defendants do not deny that “if a newsletter said there was sexual abuse of children at Mi Casa that it would prohibit or inhibit some people in making donations.” (Tr. at 561). Arne Sapper is a businessman in Guatemala City. He is the Vice President and a member of the Board of Directors of the Asociación (“the Board”), whose duty is to oversee the policies of Mi Casa. The Asocia-ción is a non-profit association organized under the laws of Guatemala which was started in 1984. The finances of the Asociación are controlled by the Guatemala Government. Mi Casa is the trade name of the Asociación, so that Mi Casa and the Asociación are the same. Sapper visits Mi Casa regularly day and night and attends Board meetings there almost once a month. He has talked to staff members, teachers and the boys at Mi Casa. No boy said anything to him about sexual abuse, nor did he observe any sexual abuse or have the slightest suspicion of such conduct. The boys at Mi Casa appeared to him to be very normal, open and friendly. There was never a claim of sexual abuse, except the boys involved in this case. Sapper was aware that Wetterer sent newsletters to donors which he said did not contain false statements. After he learned of the charges of sexual abuse, the Board initiated a number of investigations. In addition, official investigations were conducted by various Guatemalan agencies. Strangely, Sapper never wanted to speak to the boys who charged the sexual abuse. During the time criminal charges were filed against him in Guatemala, from July 22, 1991 to December, 1992, Wetterer and his sons were barred from Mi Casa. As to the staffing at Mi Casa, there were about 19 teachers, a female cook and other kitchen and maintenance personnel, together with priests and volunteers. The boys at Mi Casa were regularly examined by pediatricians. In his view, the boys at Mi Casa were given a healthy environment and have a better chance in the future. As to donations, some people do so based on recommendations, pri- or to receiving a newsletter. Remarkably, after the allegations of sexual abuse were made public, Sapper stated that the donations increased, including French donors from Les Amis. Sapper stated that approximately $80,000 seized in the Miami account was entirely French money. On cross-examination Sapper revealed that the Asociación was involved in several questionable transactions involving Wetterer and his brother Gary. In addition, the Asociación paid $5,000 or more for Wetterer’s son to go to school in New York. Wetterer has a strange compensatory arrangement at Mi Casa. Apparently he receives no salary per se, but the Asociación makes certain payments for him, his sons and his brother. David Wetterer is an adopted son of Wet-terer along with younger brother Gary and older brother Bill. He was adopted from an orphanage in Vietnam. David lived in Mi Casa with his brothers, in separate rooms next to Wetterer. He lived there during the period 1976 to 1986. His father never sexually abused him or any of the other boys. David testified that Mi Casa is a safe, wholesome and happy environment. However, David was recalled later in the trial and testified in a damaging manner with regard to Wetterer’s physical abuse of the children. Enrique Barillas came to Mi Casa in 1982 with his brother Benito. He was nine years of age and his brother was seven. Barillas has a close relationship with Wetterer. He testified that the boys at Mi Casa took group showers. Sometimes, Wetterer assisted boys in the showers with soap, shampoo and towels. At the trial, Barillas testified that he is 24 years old and still lives at Mi Casa. There are six to ten older boys like himself who still live at Mi Casa. He is studying law and is preparing for the bar examination. He knew all the boys who made accusations against Wetterer and they never talked to him about sexual abuse. Barillas was never sexually abused by Wetterer, nor, according to him, was anyone else. He was interviewed by Samek in 1989 and he told him there was no sexual abuse at Mi Casa. Barillas testified that he was in Wetterer’s quarters and in his bedroom. He has taken hot showers and slept on the floor of Wetter-er’s quarters. Sometimes boys fell asleep on the floor of Wetterer’s bedroom and some spent the night in his quarters. Sometimes, Wetterer was the only adult who slept at Mi Casa. Sergio Salas became a resident of Mi Casa in 1977 at the age of eleven and lived there six years, leaving in 1982 or 1983 at the age of seventeen. He testified that he never heard or knew of sexual abuse at Mi Casa. The Court could barely understand this argumentative witness, who refused to testify through an interpreter despite his poor command of English. The Court believes that Sergio Salas did not tell the truth as to certain issues and the Court declines to credit the testimony of this witness. Joshua Salas was also a resident of Mi Casa. He does not recall the dates of his residency. Tio Juan was like his father and he does not understand why “they” are saying things about him. Salas told all who asked him that there was no sexual abuse at Mi Casa. Further, Leonel and Manuel never told him that they were sexually abused. At this point the defendants rested. THE UNITED STATES REBUTTAL CASE The Government produced Dr. Simon Miranda, a Florida licensed clinical psychologist who testified at the trial on a number of occasions. Miranda interviewed six of the Mi Casa boys and rendered opinions concerning whether he believed they were sexually abused. In a 29 page Memorandum Decision and Order dated January 2, 1998, familiarity with which is presumed (991 F.Supp. 112), the Court granted the defendants’ motion to strike Miranda’s testimony regarding recantation, and the statements to him of Leonel Piedrasanta, Manuel Bravo, Rotilio Sanchez, Hugo Piedrasanta, Jose Luis Melendez and Jose Luis Lutin. Further, the Court granted the defendants’ motion to strike the transcript and tape-recording of Miranda’s interviews of Leonel Piedrasanta. In any event, the Court was not impressed with the testimony of Miranda, who received fees of approximately $40,000 for his interviews, reports and time spent in court. Notwithstanding this enormous expenditure, his testimony was of limited value. However, the Court accepts a portion of the testimony of Miranda, namely, that after being sexually molested, the boys he interviewed felt humiliated and demeaned, and they suffered when relating the incidents. The Government then produced the Mi Casa boys who, it contends, support their contention of sexual abuse at Mi Casa. Manuel Bravo is 28 years old and has lived with Mary Tyre in Miami Beach for the past nine years. Bravo lived in Mi Casa from the age of eight in May 1977 and for the next 12 years. Other than Wetterer, no adults lived at Mi Casa. When Bravo was nine years of age something unusual occurred. Wetterer asked him and another boy called Jorge to go to his bedroom, where they slept in Wetter-er’s bed, one on each side of Wetterer. Nothing else unusual happened that night. A second incident occurred when Bravo was 12 or 13 years old. Wetterer invited him to have dinner in his kitchen and to watch a movie in his living room. After the movie, Wetterer asked him to take a shower and Wetterer came in with a towel and dried him. The 6'2" tall Wetterer led the 5'4" tall Bravo to his bedroom, where he lay naked in Wet-terer’s bed. Wetterer locked the front door. Bravo put his underwear on. Wetterer removed his clothes and got in bed with Bravo, who related what happened as follows: Q And what happened after he got in the bed? A He started touching my chest. And then he went on to touching my back, down to my buttocks. Q And did anything else happen? A Yes. He put me on top of his chest. We were chest to chest. And I was touching his chest. And then later on he moved me on his right. And I was on my back when he proceeded to touching my private part. Q Did you touch any part of his body other then his chest? A That’s the only place I felt comfortable touching him. Q Did you say anything to Uncle John while you were having this experience? A We never said a word to each other. Q After Uncle John touched you or I guess was finished touching you, what happened after that? A I believe I slept there and stayed until the next morning. Q When Uncle John touched you, were you physically aroused? A Yes, there was a point I was. Tr. at 890-91. Bravo testified that he had no other sexual encounters with Wetterer. He doesn’t remember what year or date or season this latter incident occurred. Bravo remained at Mi Casa after the latter incident and overlooked the sexual abuse because of the educational opportunities afforded to him. Bravo told no one about these encounters until he confided in Mary Tyre and asked her to keep it a secret. He later related these incidents to Miranda. Bravo testified that he was willing to tell Miranda “because he was a psychiatrist and I felt that I needed a way to get it out of my system and talking would help me out.” (Tr. at 952). Currently, Bravo is in the United States on a work permit. He applied for political asylum, which was denied. Bravo was fearful of returning to Guatemala after appearing on Sixty Minutes. Bravo conceded that he was having sexual experiences with other young men at Mi Casa. Also, he never saw Wetterer abuse any other boy. Oddly, Bravo told Miranda that “80 percent of the boys at Mi Casa are being abused.” (Tr. at 944). The Court credits the testimony of Bravo; he is a believable witness. Jose Luis Lutin lives and is employed in Miami. He is 26 years of age and was born in Guatemala. Lutin first lived at Mi Casa in 1982 at the age of nine. He previously had lived in poverty without food, clean clothes or any education. At Mi Casa he had food, clean clothes, medical and dental care and he started his schooling. The boys at Mi Casa slept in three large bedrooms in bunk beds with 75 to 100 boys in a room. Wetterer was the only adult who lived at Mi Casa. Lutin called Wetterer “Uncle John” and he came to love him. He gave Wetterer a card on his birthday in 1985 and 1986 in which he stated, among other comments, that he thought of Wetterer “as a father” and “I love you dad.” (Pl.Ex.20). On May 27, 1985, the day before Lutin’s birthday, something unusual happened. Wetterer took him by his arm and asked him if he was hungry. When Lutin replied that he was, Wetterer led him by the hand to his apartment. Wetterer locked the door, fed Lutin and told him to take a shower. Wet-terer dried him with a towel and gave him a bikini to wear. Wetterer then led Lutin to his bedroom, locked the door, undressed himself and got in bed with him. Lutin then related what occurred, crying as he testified: Q And after he got back in the bed what happened? A He — he start fondle me. He started touching me. Q Where did he touch you? A All over my body, in my private parts. Q Were you still wearing the bikini that he had given you? A Yes, I was. Q And were you physically aroused by Mr. Wetterer’s touching of your body? A Yes. Q And after you were physically aroused what happened? A Then he started kissing me. Q And where did he kiss you? A He started kissing me on my legs. And then he went and he pulled my underwear off. Q And what happened after that? A He continued to touch me. He turned me sideways on the bed and he start hugging me. Q When you say he toned you sideways, were you facing John Wetterer? A No. My back was given to him, and he was facing my back. Q And was he still wearing anything? A Yes. He was still wearing his underwear and his white T-shirt. Q And so what happened after your back was to John Wetterer? A He put himself behind me. And he started breathing very hard, like loud and fast. Q Did Mr. Wetterer move against your body? A Yes. He just — he just put himself very close to me, to my back. And then he — he took his private parts and put it— THE COURT: Does the witness want to take a break? Do you want to take a short recess? THE WITNESS: No, that’s okay. THE COURT: All right. Go ahead. A (Continued). He took his private part and he put in between my legs. Q Did anything happen when he put his private parts between your legs? A He started like going back and forth. He just keep going back and forth. And every time, he just continued to breathe faster on me. Q Did you feel any physical sensation as a result of the physical movement against your body? A What do you mean? Q Did his private parts ever touch your buttocks? A When he was moving back and forth he — his private parts just — he just — he put it in behind. One of the time he was moving back and forth, he put his private part inside of me. And I just — it kind of hurt. MS. RILEY: Your Honor, I think it might be best if we took a break. THE COURT: All right. We will take a five-minute recess. Q Now, during this encounter with John Wetterer, did you ever touch his private parts? A He put my hand on his private parts, and he took my hand and put it on his private parts, and he continued to touching my private parts as well. Q And when you touched his private parts, did Mr. Wetterer put your hand on top of his clothes or underneath his clothes? A He put it underneath his underwear. Q All right. And what did Mr. Wetterer do with your hand once it was underneath his underwear? A- He was — he was trying to — when he took my hand he started moving it up and down, like he wanted me to masturbate him. Q Did John Wetterer ejaculate that night? A Yes, something came out. Q Did it come out in your hand? A Not everything. Part of it just spill on my hand. Q And did you also ejaculate that night? A Yes. Q Did John Wetterer say anything to you during this encounter? A No. He just — -like I said, he just continued breathing hard and faster. The next morning he just — he look at me and he say, I love you, son. Q Was this your first sexual experience? A Yes. Q Did you sleep in John Wetterer’s bedroom that night? A Yes, I did. Q And what happened in the morning when you woke up? A About 5:00 o’clock in the morning he got up and he went outside his apartment. After some time he came back and he told me put your clothes on, and he sent me to my room. Q Now, after you had this experience with John Wetterer, did you still call him Uncle John? A Yes, I did. Q Did you still love John Wetterer? A Yes. Q Did he still feel like a dad to you? A Yes. Tr. at 1008-14. Lutin testified that he had two additional roughly similar sexual encounters with Wet-terer. They occurred when Lutin was 12 years of age, during the years 1984 and 1985. The Court need not describe the sexual aspects of similar episodes that were one week apart. However, during the third encounter, Wetterer also physically abused a nude Lutin by hitting him with a wooden paddle: Q Did you take all of your clothes off? A Yes, everything, everything. My socks, everything. Q And then what happened? A He went and he— Q When you say “he” are you referring to John Wetterer? A Yes, I am. John Wetterer went and he took this wooden paddle. And he put me on his lap, and start hitting me. And I asked him what did I do wrong? Q Did he answer you? A No. The more I asked him what did I do wrong, the more upset he got. Then I stopped asking. Then after that he told me lay on the floor. And he grabbed my two hands and put it on the floor, and my two legs. So I was like bending on my two knees and my hands. Q And then what happened? A And then he got the wooden paddle, and he start hitting me. Q And on what part of the body, of your body, did he hit you? A On my behind. Q And then what happened? A After that he told me, get up. So I got up. And he took his leather black belt that he was wearing, and he started hitting me like this (indicating) with his belt. Q Did he actually make contact with your body with the belt? A Yes. Every time he swing the belt he hit me in various parts of my body. Q And did John Wetterer ever tell you why you were being beaten that day? A No. After he finished hitting me with his belt, he unlocked the door and he said get out. So I left. Q Did you put your clothes on? A Yes. Tr. at 1017-18. Lutin also described the sexual contacts that some of the boys at Mi Casa had with each other and that he had with two other boys. In addition, Lutin told of a second beating of him and seven other boys at the hands of Wetterer on a New Years Eve: And he told me take your clothes off. When he said take your clothes off, that included everything. And just stay with no clothes at all. So I took it. I took it off. And then he left. And then he came back with another child, and put him in another classroom right next to me. And he did that until seven of the classrooms were filled with one boy, one guy in each classroom. Then he came back to me and he put my hands up like this (indicating) against the board, against the blackboard, and he started hitting me with a wooden paddle. He hit me for, I don’t know, about five, ten minutes. And then he left. And he went to the next classroom. Q How do you know that? A Because the sandals he was wearing made noise on the floor when he walked in the next classroom. And he started hitting the other guy that was— MS. GERMAN: Objection, your Honor. THE COURT: You could see him hitting anyone else? THE WITNESS: From another guy in another classroom, yes. THE COURT: You could see this? THE WITNESS: Yes. THE COURT: What did you see? THE WITNESS: He started doing the same thing he was doing with me. The other guy had his hands up the same position I had it. And he started hitting him the same way that he hit me. Q Did this boy have on any clothes? THE COURT: You are saying you could see into another classroom across the way? THE WITNESS: Yes. Q The question was: Mr. Lutin, could you see if that boy had any clothes on? A Yes, I could see. Q Did this boy have any clothes on? A No, he did not. Q Did you hear any sounds coming from the other classrooms that were on the second floor? A Yes. Q And what were the sounds you heard? A Well, every time that like for instance Uncle John would come to hit me and then he would go to the next one. And then I could hear the next guy in the next classroom screaming. And I heard the sounds of the wooden paddle as well. So that’s how I heard. Q Now, were you in pain as a result of the beating that you received that day? A Yes, I was very — my behind was very — I mean it hurt. Because I remember that for the next two days I couldn’t sit when I went to class. Q Did Uncle John say anything to you that day about why you were being beaten? A He told me because I had come late when I asked him if I could go and visit my father for New Years Eve, and it was instead of coming at 2:00 in the morning, come at 6:00. Tr. at 1024-27. Lutin left Mi Casa in 1987 at the age of fifteen. He later returned and left for good in late 1989. Lutin told no one about being sexually abused by Wetterer, nor was he ever interviewed by anyone from the Guatemala Government or the judicial system. In 1990, Lutin came to the United States where he met Inspector McDermott and told him about the sexual abuse. In Miami, he stayed with Tyre and Hanna Colombey and met with Miranda. While in the United States, Lutin graduated from high school and was convicted of a felony involving a deadly weapon, a box cutter. He pled “no contest” and received a non-custodial sentence. Lutin never applied for citizenship or for political asylum in the United States. His present immigration status is that he has a work permit. The Court finds Jose Luis Lutin to be a believable witness and credits his testimony as to the sexual abuse and the beatings by Wetterer. FBI Supervisory Special Agent Kenneth Lanning is an expert in the area of child sexual abuse and the victimization of children. Given a hypothetical question, Lan-ning testified that young male victims of sexual abuse by an adult male generally do not make disclosure because of a number of factors. The first factor is the perceived stigma of homosexuality. Second, is the fear of society condemnation. Third, young boys often depend on the perpetrator and do not want to get him in trouble. The fourth reason is fearfulness on the part of the boy victim. The Court previously commented on Lanning’s testimony in its January 15, 1988 decision (991 F.Supp. at 123), as follows: The Court concludes that under the circumstances present in this case, expert testimony explaining that young boys are particularly reluctant to reveal the abuse because they fear being stigmatized or condemned by society, fear the abuser, and may like and depend on the abuser, was relevant to explain why the victims initially may have been unwilling to report that Wetterer molested them. “Behavior of this type is not within the ordinary understanding of the [fact-finder] and testimony explaining this behavior assists the [Court] in determining what effect to give the [victims’] initial failure to [report the abuse]_This evidence provides a possible explanation for the [victims’] behavior that is consistent with [their] claims that [they were molested]. As such, it is relevant.” Taylor, 75 N.Y.2d at 292, 552 N.E.2d at 138, 552 N.Y.S.2d at 890. The Court notes that such testimony is not being admitted for the purpose of proving that the sexual abuse occurred. What he related were really common sense notions, which the Court itself takes into consideration. Shame and fear were certainly feelings generated in young boys who were sexually abused by their teacher and leader and the most important adult in their life. Gabriel Orellana Rojas is a practicing attorney in Guatemala. He taught in law schools in Guatemala and Florida. Rojas was retained by the Government to represent the United States in the extradition ease against Wetterer. He also was retained by the Government in this ease as a legal expert on the procedures in criminal cases in Guatemala. In that regard, he explained the workings of the criminal justice system in Guatemala. Rojas reviewed the certified copy of the records of the criminal case in Guatemala against Wetterer. The status of the criminal case against Wetterer in Guatemala is that it is still pending and is in the investigative stage. There has been no trial on the merits — neither a conviction or an acquittal. Wetterer is in a “provisional” status which can be revoked by the Court if additional evidence is produced. As to the extradition proceeding, it failed because mail fraud is not an extraditable crime in the treaty between Guatemala and the United States. Also, the alleged sexual crimes were committed in Guatemala so that the United States had no jurisdiction over those matters. Accordingly, the Guatemala Court determined not to extradite Wetterer to the United States. Rojas reviewed the Guatemala criminal court record and summarized his findings. Three persons said they were victims of sexual abuse at Mi Casa: Hugo Saelluis, Edgar Ronald Barrios and Cesar Giovani Lara. Also, he read a list of persons who were not themselves victims but said that they had knowledge of sexual abuse at Mi Casa. Carlos Toledo is a citizen of Guatemala and resides in Guatemala City. He holds a degree as a teacher of humanities and he is the National Director of the Our Rights Association in Guatemala. His responsibility is “to support and promote ... the human rights of the children who live on the streets of Guatemala.” Previously, Toledo was employed as Program Director at Casa Alianza, a Guatemala foundation dependent on the Covenant House in New York, whose mission is to protect and afford refuge to Guatemala City’s 10,000 homeless children. Toledo received special training on the sexual abuse of children. In 1992, Toledo and Karen Rodas prepared a report concerning the abuses that occurred at Mi Casa. This report was an unpaid personal initiative by Toledo. In this report, they documented the abuse to street children who lived at Mi Casa. He and Rodas interviewed 25 children who were former residents of Mi Casa, averaging three to four interviews per child. Each of the interviews lasted two to three hours. Interviews of 13 children are in the report. In this investigation, they used fictitious names for the children, for “their own safety.” The Toledo report was placed in evidence by the defendants as Def .Ex. AL, with the translation as Pl.Ex. 39. Significantly, of the 25 boys interviewed, only one told him that he was sexually abused by Wetterer. The report contained two interviews with children identified as “Adolfo N.,” conducted on June 9, 1991, and “Hugo N.” on June 29, 1991. This segment of the report is relevant as to the material issues in this case and will be set forth in detail in Part V of this decision (Documentary Evidence). In addition, Toledo and Rodas interviewed Silesian priests who gave them information similar to the facts stated by the interviewed children. In fact, Wetterer admitted in front of the nuns “that he did punish the children physically.” Toledo and Rodas determined that the program was not fulfilling its objectives because of these experiences. Their report was delivered to the Prosecutor for Juveniles in Guatemala, at which time Toledo was accompanied by six of the interviewed children, including Hugo Sael. The Court finds that Carlos Toledo is a credible and persuasive witness. Gustavo Adolfo Munoz, referred to in the Toledo/Rojas report as “Adolfo N.,” testified at this trial when he was 23 years old. A Guatemala resident all his life, he never saw his parents and was taken by his aunt to Mi Casa when he was six years old. Munoz lived at Mi Casa for seven years and left at the age of 13. Corroborating the report’s summary of his interview, Munoz related what happened when he broke the rules of Tio Juan: Q And who would punish you? A Tio Juan. Q And how would you be punished when you broke the rules? A He would call me to the office. I would be told to take off my clothing. Q And what clothing would you be told to take off? A All my clothing. Q Everything? A Yes. Q And then what would happen? A I would be hit on my rear end with a ping-pong paddle. Q And would you ever be punished like this in front of other boys? A Yes. Q And on the many occasions when you were punished when there were other boys present, what would the other boys be doing? A They would be naked just like me and they would be beaten just like me. Q Would you be beaten in front of each other? A Yes. THE COURT: On how many occasions did this happen where other boys were naked and beaten in front of you? THE WITNESS: About three times. Tr. at 1623-24. Munoz testified that, in addition to being physically abused as detailed in the report, he was sexually abused by Wetterer, which was not placed in the report. No details as to sexual abuse were given by Munoz. At the trial, the Court does not credit this latter testimony as to sexual abuse. Dr. William R. Samek is a licensed clinical psychologist and the Founder and Director of the Florida Sexual Abuse Program in Miami, Florida since 1981. He has a Ph.D. from the University of Miami and had an internship and residency as a clinical psychologist and in studying sexual abuse cases. In addition he has lectured and testified in the field of evaluating sexual abuse. He was qualified as an expert in evaluating sexual abuse and treating sexual abuse victims. The personnel in his program treat victims of sexual abuse and do assessments for the courts. Samek has personally treated 300 to 500 patients with the program handling between 2,000 and 3,000 cases. On December 5, 1988, Samek was contacted by Daniel Mackay and the Board of Directors of the American Friends of Children. Samek was asked to conduct an investigation of sexual abuse at Mi Casa by Wetterer. On December 29, 1988 Samek went go Guatemala to conduct the Guatemala phase of the investigation. Prior to leaving, Samek reviewed written material; spoke to the Guatemalan Consulate in Miami, the Ethics Chair of the American Psychological Association, Miranda, Mary Tyre, Manuel Bravo and Leonel Piedrasanta. However, he reached no conclusions after this initial investigation. Samek began a more thorough investigation of Mi Casa on December 21, 1988. He met or talked to approximately 25 boys but only conducted two or three interviews, with each interview lasting two to three hours. Interestingly, Samek attempted to conduct an interview of Wetterer at an apartment in Guatemala City. Wetterer immediately started to cross-examine Samek. Wetterer was very controlling and insisted that Samek answer his questions. Indeed, Samek could not get Wetterer to respond to any of his questions. In fact, the interview ended when Wetterer fired Samek, terminated his services and ended the investigation. When Samek questioned Wetterer’s authority to discharge him and terminate the investigation, he responded that he was the President and did have the authority. Samek then asked permission to continue interviewing the boys for a few hours and Wetterer said, “No.” Further, Wetterer said he would not comply with a judge’s order stating that the investigation could continue under certain conditions, and he said he was going to completely end the investigation. Samek never returned to Mi Casa and left Guatemala on December 23,1988. Before Wetterer terminated him, Samek did interview three boys in various stages of privacy in Guatemala, and none verbally told him that they were sexually abused. Although Samek apparently was prepared to do so, the Court declined to permit Samek to give his opinion as to whether Wetterer sexually abused the boys at Mi Casa. On cross-examination, Samek conceded that he did not diagnose or provide therapy to any person who alleged he was sexually abused by Wet-terer. Angel Antonio Ortiz has lived on the street in Guatemala City for about five or six years. Ortiz never knew his father and his mother is dead. His sister placed him in Mi Casa when he was at an age prior to entering school. When he testified he was 22 years of age. Ortiz liked living at Mi Casa where he studied, played, met friends, had enough food to eat and had clean clothes. He stated that Tio Juan was in charge of Mi Casa and made all the rules. While he was at Mi Casa, Ortiz admitted that he broke the rules. He did not like to study, fought with other children and stole food. For these transgressions, Wetterer punished Ortiz each time he broke the rules. Wetterer forced Ortiz to strip naked and hit him on his bare buttocks with a wooden paddle. Ortiz saw Wetterer hit other naked boys with the wooden paddle. He described how Wetterer would line up the boys who broke the rules, tell them to take off all their clothes and hit them. Ortiz