Feds send youth smuggling cases straight to local prosecution

Posted: Friday, October 14, 2011 8:35 am | Updated: 10:49 am, Fri Oct 14, 2011.
By Jonathan Clark Nogales International

On the afternoon of April 18, two U.S. Border Patrol agents spotted a red Dodge Neon driving along an unpaved Forest Service near Peña Blanca Lake.

Knowing that the road was not normally used by small cars, and then spotting suspicious packages in the back seat of the car, the agents decided to the stop the Neon along Ruby Road, according to court documents.

However, after first pulling over to the shoulder, the car sped off, leading the agents on a chase before it crashed into a cement barricade. The driver and lone occupant, a 16-year-old boy from Rio Rico, was taken to Holy Cross Carondelet Hospital with non-life- threatening injuries. Meanwhile, the agents pulled nine bundles of marijuana weighing more than 250 pounds from the Neon's back seat.

Under previous circumstances, the Border Patrol would have turned the teenager's case over to a federal investigative agency, which in turn would have referred its investigation to the U.S. Attorney's Office for prosecution in federal court. But this incident marked the start of a new arrangement between the Border Patrol, the U.S. Attorney and local prosecutors under which the case was instead sent directly to the Santa Cruz County Attorney's Office for prosecution.

Since spring, the County Attorney's Office has been taking direct criminal-case referrals from the Border Patrol and U.S. Immigration and Customs Enforcement's Homeland Security Investigations (ICE HSI) on drug smuggling cases involving juveniles from Santa Cruz County. The local prosecutor has long been able to accept federal referrals on a wide variety of cases, but they usually have come after federal authorities first declined to prosecute. The new arrangement, created in conjunction with the U.S. Attorney's Office, allows Border Patrol and ICE HSI to skip the intermediary step when the defendant fits a specific profile.

"If they are juveniles that are living in our county and going to our schools, then those are the juveniles that we want to try to help," said Liliana Ortega, chief deputy Santa Cruz County attorney for criminal cases.

With juvenile drug smuggling arrests on the rise in Arizona's border communities, federal authorities who are involved in the effort say Santa Cruz County's juvenile justice system is better equipped to deal with the problem than the federal courts. By meting out a combination of consequence and rehabilitation, they say, the county could have better luck in refuting the message of drug traffickers who try to assure underage recruits that they won't be punished if they're caught.

"They're basically pushed in and pushed out of the federal system," Kevin Kelly, assistant special agent in charge of ICE HSI in Nogales, said of juvenile offenders. "The penalty is stiffer from the county, but, on the back end, the rehabilitation and the diversion, and the long-term assistance that the (juvenile) offender gets is better."

Kelly called the Santa Cruz County juvenile probation system "very progressive," and praised the approach of local prosecutors as well. "You've got a really good county attorney's office that wants to deal with (juvenile drug smuggling) more proactively in not only implementing the corrective side of it, but also in implementing the rehabilitative side," he said.

The U.S. Attorney's Office also expressed hope that local prosecution could provide a more effective deterrent.

"The (Santa Cruz County Attorney's Office) and the resources of the local juvenile authorities will hopefully have more impact than a federal prosecution in discouraging this behavior," said Sandy Raynor, public affairs officer for the U.S. Attorney's Office in Arizona.

But Saji Vettiyil, a Nogales-based defense attorney who has represented juvenile defendants in both state and federal court, disputed the idea that juvenile drug smugglers receive better rehabilitative attention at the state level. While the federal court system does not have its own juvenile rehabilitation program, Vettiyil said, it still contracts with state and local agencies to provide the service. And he said the feds are more generous about waving or reducing the associated fees.

"In Santa Cruz County, most of the kids who commit these offenses, they and their families are already destitute," he said. "Now they are adding more misery by forcing them to pay for these services which they could have received for free, or close to free."

Vettiyil said he is also concerned by the punishment levied at the state level, where prosecutors can easily pursue adult felony convictions in juvenile drug cases and push for punitive incarceration. While federal prosecutors can pursue adult convictions in juvenile drug smuggling cases, he said, the practice involves more judicial review and is rarely used.

"In the federal court system, a juvenile, regardless of the crime, is presumed to be able to be rehabilitated. You are only allowed to place a juvenile in a confined setting if it can be justified for therapeutic reasons - and a deterrent effect is not a therapeutic reason in the federal system," Vettiyil said. "Juveniles are treated as juveniles in the federal system because there's a presumption that they can be rehabilitated."

Two options

According to U.S. Customs and Border Protection, its officers apprehended 83 juveniles who tried to smuggle drugs through Arizona's ports of entry during the fiscal year ending Sept. 30, 2010. And while figures were not immediately available for the recently concluded 2011 fiscal year, CBP said in August that it had already arrested 135 juvenile drug smugglers (93 U.S. citizens and 42 Mexicans) at Arizona ports since Oct. 1, 2010.

Amid that scenario, the Santa Cruz County Attorney's Office agreed to take direct referrals from ICE HSI - the agency that investigates CBP's drug smuggling arrests, as well as its own cases - beginning on June 28.

The Border Patrol, which arrests juvenile smugglers on the streets and roads of Santa Cruz County - as well as the Interstate 19 checkpoint - started its direct-referral agreement with the county attorney on April 18, the date of the pot bust on Ruby Road.

So far, Ortega said, the local prosecutor's office has received seven ICE or Border Patrol referrals under the new protocol, and it has prosecuted all seven.

"We've seen an increase in the use of juveniles in the drug trade, and so we're concerned about that," she said. "We'd like to get the message out that these are serious crimes and that they are dangerous to our children. If we start acting on these cases, then hopefully the word will get out."

When a federal juvenile referral case arrives at the county attorney's office, Ortega said, the first decision is whether to prosecute the case. The second is whether to prosecute the juvenile as an adult.

State law allows for juveniles at least 14 years old to be charged with Class 2 felonies, which includes drug smuggling, Ortega said.

"The juvenile justice system is there to rehabilitate juveniles, so one of the factors we look at is the child's age, criminal history and the likelihood of rehabilitation," she said. "If it's a younger child, say 14, 15, maybe even 16 years old, and it looks like the courts have the tools and the means to help this child, then we tend to leave those in the juvenile system."

However, if the offender is older, then prosecutors will take other issues into account, such as the severity of the offense, previous offenses and the amount of drugs involved, and consider whether the case merits adult prosecution.

That's what happened in the April 18 case on Ruby Road, in which the 16-year-old Rio Rico boy - who already had a history in juvenile court - was charged not only with unlawful possession and transport of 250 pounds of marijuana, but also with fleeing a law enforcement vehicle. The county attorney charged him as an adult, then offered him a plea deal in which he would be convicted of one Class 5 felony charge of attempted possession of marijuana for sale. He accepted the deal, and the now 17-year-old was sentenced in September to three years of standard probation - which included 120 days in the county jail, with permission to be released to attend high school.

In addition, Superior Court Judge Anna Montoya-Paez ordered the teen to attend a substance abuse evaluation at his own expense; pay a $1,000 fine and another $840 surcharge; perform 30 hours of community service; and stay in school or have a steady job while on probation. He also must pay a $65 monthly adult probation fee, as well as a one-time probation surcharge of $20.

In a pre-sentence report, the boy told an adult probation officer that he had been offered $800 to drive the pot load from Peña Blanca Lake to Damon Park in Rio Rico - an offer he accepted because his aunt and uncle, his primary guardians, had been struggling financially and pressuring him to help pay the family expenses.

"Why did I do it?" he reportedly told the officer. "I did it because I wanted money."

‘No choice'

Defense attorney James Miller, who represented the teen in the Ruby Road case, said he has no experience in federal court from which to make comparisons with the local juvenile justice system. But having defended juvenile offenders in Cochise and Santa Cruz counties, he said, he thinks the system in Nogales is tough but fair.

"I've never seen anything that I thought was substantially unfair," he said.

As for juveniles prosecuted as adults, Miller said, he thought the jail time in the Ruby Road case was perhaps "a little onerous," but otherwise felt his client was treated appropriately. In general, he said, he thinks the County Attorney's Office aims to rehabilitate juvenile offenders and pursues adult prosecutions only when the circumstances merit it.

"I've seen the county attorney purposely not charge a juvenile as an adult, saying, ‘If the juvenile will take responsibility for what happened and make an admission, that's what I'm looking for,'" Miller said.

Vettiyil, the lawyer who defends juveniles in both state and federal venues, said it's a bad practice under any circumstance to prosecute juveniles as adults - even in cases in which prosecutors offer a plea deal for probation rather than prison time - because of the long-lasting consequences.

"Now the child will have to carry the stigma of a felony for the rest of his life," he said.

But County Attorney George Silva said adult prosecution is sometimes the only viable option.

"The juvenile justice system simply cannot impose sufficient consequences for the almost 18-year-old-defendant," he said. "We have no choice but to prosecute in the adult system."

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Sidebar: Juvenile probation in SCC

When it comes to working with juvenile drug smuggling offenders, juvenile probation officers in Santa Cruz County focus on treatment and accountability, says Primitivo Romero, the county’s chief probation officer.

The first step, Romero said, is to conduct an assessment of the juvenile’s risks and needs. If it looks like the person might benefit from counseling, then an officer can make a referral to one of four different counseling agencies – and the probationer and his or her family can have a say in which agency they prefer, Romero said.

As for accountability, Romero said, “We believe it’s important for these juveniles to understand that there are consequences for one’s actions.â€