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US judge orders new trial for Lorraine Henderson

Says instructions to jury inadequate in security official case

Lorraine Henderson left the Moakley Federal Courthouse in this 2010 file photo.

JOSH REYNOLDS FOR THE BOSTON GLOBE

Lorraine Henderson left the Moakley Federal Courthouse in this 2010 file photo.

A federal judge, saying he erred in his jury instructions, has ordered a new trial for a former high-ranking official of the US Department of Homeland Security who was convicted of encouraging her housekeeper, an illegal immigrant, to stay in this country.

“My instructions to the jury as to the elements of the crime were inadequate, and . . . a new trial is warranted, in which appropriate jury instructions fashioned in response to recent developments in the case law will be delivered,’’ US District Court Judge Douglas P. Woodlock said in a 50-page order released Wednesday.

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A jury found Lorraine Henderson guilty in March 2010 of encouraging and inducing an illegal alien to remain in the United States, a felony punishable by up to five years in prison.

Woodlock explained that his definition of “encourage’’ and “induce’’ to jurors was inadequate, citing a Third Circuit case defining them.

Prosecutors have waited two years for sentencing, but instead Woodlock has requested an update on the housekeeper’s status and reviewed motions by the defense to set aside the jury’s verdict or grant a new trial.

“We have great concern with the court’s decision to disrupt the jury’s verdict finding Ms. Henderson guilty,’’ said US Attorney Carmen M. Ortiz. “We are assessing our options, including an appeal.’’

For Henderson, 54, Woodlock’s order was a relief.

“She’s elated at Judge Woodlock’s ruling,’’ said Francis DiMento, the Boston lawyer representing Henderson. “She’s still working at a pet store,’’ he said. “She lost her whole career because she felt a little empathy for this poor cleaning lady and wanted to find a legal way for her to stay in this country.’’

Henderson worked as Boston port director for Customs and Border Protection, a $140,000-a-year job in which she was responsible for keeping New England’s ports secure from illegal immigration. She was headed for a higher post when supervisors learned she was employing an illegal immigrant to clean her house.

Agency employees were warned not to hire illegal immigrants, and Henderson had been told by a co-worker that her cleaning woman was in the country illegally.

But Henderson continued to employ Fabiana Bitencourt, a Brazilian who lived in Peabody, to clean her four-level townhouse in Salem every couple of weeks from 2004 to 2008.

Bitencourt, paid $75 each time she cleaned Henderson’s house, was ultimately confronted by Customs and Border Protection agents, tipped off by supervisors, and she agreed to cooperate by wearing a wire. She secretly tape-recorded Henderson advising her not to leave the country.

“You can’t leave, don’t leave . . . once you leave you will never be back,’’ Henderson said, according to court records.

The housekeeper is currently in “deferred action’’ status, according to a letter submitted to Woodlock by Diane C. Freniere, the lead prosecutor in the case.

Bitencourt has applied for and been granted deferred action status since 2008, initially to testify in the first trial and now to ensure she will remain in the United States to testify in the retrial. The status defers any deportation proceedings and allows her to stay legally and apply for employment authorization cards, which she has received.

Prosecutors say they have not extended “promises, rewards, or inducements’’ to Bitencourt in exchange for her testimony. Since the verdict, she has given birth to a child, who is a US citizen.

DiMento called it ironic his client tried to find a legal way to help Bitencourt stay in the United States and her good intentions eventually led to temporary legal residency for the housekeeper. “She’s indeed been able to stay in the country because of this whole situation,’’ he said.

In his order, Woodlock admonished prosecutors for going after Henderson, saying they have been overzealous.

“A sense of outrage out of proportion to the circumstances of the misconduct here has apparently driven the case to be pursued as a felony,’’ he stated.

Brian R. Ballou can be reached at bballou@globe.com. Follow him on Twitter at @globeballou.
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