Thread: Phx Judge misinterprets law - dismisses charges on illegals

Charges dismissed against 2 in smuggling case
Associated Press
Jul. 11, 2006 04:31 PM


A judge on Tuesday dismissed charges against two illegal immigrants accused of conspiring to violate a new state human smuggling law.

The dismissal came after two days of testimony in the first trial of illegal immigrants charged as conspirators under the Arizona law, which targets smugglers but has been interpreted by a prosecutor as applying to those being smuggled.

Maricopa County Superior Court Judge Thomas O'Toole said the prosecution provided no substantial evidence that the immigrants conspired to violate the law.

Prosecutors said the immigrants formed a group to sneak themselves into the country and that items found inside the vehicles - such as carpet scraps that can be tied to shoes to reduce footprints in the desert - are evidence of smuggling.

The two men on trial this week were among 51 people arrested southwest of Phoenix in March while traveling in two vans.

"You happen to be in a vehicle with other people on the same mission," O'Toole said.

O'Toole declined to dismiss a charge against a third illegal immigrant charged with the actual human smuggling.

Gustavo G. Unbalejo, 29, and Antonio Hernandez, 21, were only charged with one count of conspiracy to violate the smuggling law. They'll likely be turned over to immigration agents for deportation.

Trial will continue for a third man facing trial, Javier Ruiz, 33, charged with actually smuggling the migrants. All three men are from Mexico.

Unbalejo and Hernandez were being prosecuted under a novel interpretation of a 2005 state law which was intended to help local authorities crack down on migrant smuggling.

The law makes it a midlevel felony punishable by up to 2 1/2 years in prison to smuggle illegal immigrants.

Maricopa County Attorney Andrew Thomas has drawn criticism from immigrant advocates for using the law to target not only smugglers, but also to charge their customers as conspirators to the crime.

The men on trial this week were part of a group that crossed into the country near the western Arizona border city of San Luis. Group members came from throughout Mexico and intended to find work or join family members already living in the United States.

Critics said the law was never intended for use against the customers of smugglers. Thomas said his approach is needed for holding rank-and-file illegal immigrants accountable.

The interpretation was upheld a month ago by a trial court judge, and a lawyer for one of the immigrants said he intends to appeal the decision.
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Smuggling Charges Dismissed in Ariz. Court

By JACQUES BILLEAUD
The Associated Press
Wednesday, July 12, 2006; 12:43 AM


PHOENIX -- A judge dismissed charges Tuesday against two Mexican men in the first trial of illegal immigrants charged as conspirators under a new Arizona smuggling law.

The law targets immigrant smugglers, but a prosecutor has said that those who paid to be sneaked into the country also can be charged as conspirators to the crime.

After two days of testimony, Maricopa County Superior Court Judge Thomas O'Toole dismissed charges against the two men, who were among the first 48 immigrants to be charged as conspirators under the 10-month-old law.

O'Toole said prosecutors didn't provide substantial evidence of a conspiracy, and likened the situation to people traveling independently of each other on a commercial airplane.

"You happen to be in a vehicle with other people on the same mission," O'Toole said.

The judge, however, declined Tuesday to dismiss a charge against a Mexican man who is accused of working as a smuggler.

The man had told a grand jury that he had entered the country illegally and drove a smuggling van carrying some of the 48 immigrants in exchange for a reduction in his fee.

The immigrants were arrested in early March in remote desert about 50 miles west of Phoenix.

Twenty-eight of the 48 immigrants have pleaded guilty to the lower-tier felony of solicitation to commit immigrant smuggling. A dozen cases were dismissed, and a handful of others await trial, according to court records.

It's unclear the effect the dismissals will have on other cases.

Joey Hamby, an attorney for one of the immigrants awaiting trial, said he will ask a judge to throw out his client's case. "It's exactly the same evidence and the same legal conclusions, and it should be the same result," Hamby said.

The Maricopa County Attorney's Office, which prosecuted the case, declined to comment on the dismissals.

Immigrant advocates say the law was never meant to be used against the customers of smugglers. Maricopa County Attorney Andrew Thomas says his approach is needed for holding rank-and-file illegal immigrants accountable.

The two immigrants whose cases were thrown out Tuesday _ 29-year-old Gustavo G. Unbalejo and 21-year-old Antonio Hernandez _ were expected to be turned over to immigration agents for deportation.

The trial of the accused smuggler, 33-year-old Javier Ruiz, was expected to continue Wednesday.

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Immigrant conspiracy case tossed
2 men's acquittals challenge Thomas' policy

Michael Kiefer
The Arizona Republic
Jul. 12, 2006 12:00 AM

Maricopa County Attorney Andrew Thomas' policy of charging undocumented immigrants with conspiracy to commit human smuggling took a direct hit Tuesday when a judge threw out the first such case to make it to a jury trial.

When the prosecution rested, Judge Thomas O'Toole of Maricopa County Superior Court ruled that there was not sufficient evidence for the case to go forward, and he acquitted two defendants.

But the man suspected of transporting them will still face a jury to decide if he is guilty of human smuggling under Arizona's "coyote" law.

Thomas barely commented on the decision, citing the ongoing case against the suspected coyote.

"There is a great deal I would like to say about the dismissal of these cases," he said. "However, I am not permitted to comment during the trial. At the conclusion of the trial of the remaining defendant, I will comment at length."

That trial resumes today and should be decided Thursday.

The acquittals do not set legal precedent. They do not limit prosecutors' ability to charge more smuggled immigrants as conspirators; the Maricopa County Sheriff's Office has arrested about 250 suspects.

But, nonetheless, defense attorneys began to scramble immediately, promising to file motions to dismiss other cases.

A petition is to be filed this morning asking a higher court to have Thomas' conspiracy interpretation declared unconstitutional.

Sheriff Joe Arpaio, the only law enforcement official in the state making arrests under the coyote law, vowed business as usual.

"Every case is judged on its merits. It doesn't set any precedents," he said. "I talked to the County Attorney's Office, and they agreed to keep prosecuting them. We're going to keep locking them up. I hope to get out there tonight."

The Sheriff's Office tried to turn the two acquitted men over to the Bureau of Immigration and Customs Enforcement for deportation, but ICE refused to take custody of them.

Instead, Arpaio said, his own deputies put them in a van and drove them to the border for release to the Border Patrol.

According to Arpaio, an ICE agent told sheriff's deputies they would not take custody of anyone prosecuted under the coyote law.


Evidence lacking


Antonio Hernandez Lopez, 21, of San Luís Río Colorado, Sonora, and Gustavo Urbalejo Gomez, 29, of Puebla, Mexico, were acquitted of conspiracy to commit human smuggling.

But O'Toole ruled there was sufficient evidence for the jury trial to continue today for Javier Ruiz Lopez, 33, the suspected coyote.

O'Toole ruled that there was no evidence to show a conspiracy to commit smuggling, though he acknowledged that the undocumented immigrants probably paid to be transported.

O'Toole compared the men to people buying airline tickets.

"You're not conspiring with the other people who bought a ticket," he said.

Hernandez and Urbalejo were among 48 people arrested March 2 by a sheriff's deputy and charged with conspiracy to commit human smuggling. Of those, 12 have had charges dismissed and 29 have pleaded guilty to a lesser charge and been returned to their native countries.

Five more are still scheduled to go to trial on Aug. 1 and 11.

Attorney Corwin Townsend, who represented Hernandez, saw the judge's ruling as a "dejection" of Thomas' policy.

"Maybe they'll take a new look at the laws now," he said.

Defense attorney Joey Hamby, who represents one of the alleged conspirators who has yet to stand trial, said he will file a motion to dismiss charges against his client today.

He reasons that he may get a dismissal because his client's trial will consist of the same facts and same witnesses before the same judge.

"There's no question that others will be jumping on the wagon," Hamby said.


No precedent set


Even if the verdict is a blow to Thomas' conspiracy theories, it was not necessarily a fatal blow.

O'Toole's ruling will not set a precedent in conspiracy cases that Thomas may file.

But attorney Tim Agan, who represents yet another alleged conspirator, will file a special action with the Arizona Court of Appeals today on behalf of his client.

Agan's petition will question Thomas' right to bring conspiracy charges under the Arizona Human Smuggling Law. If the Appeals Court chooses to rule on the matter, it would set precedent.

At issue in Tuesday's proceedings was whether the defendants' self-incriminating statements would be allowed into evidence.

"They kept delaying the inevitable," Townsend said.

O'Toole danced around the question all morning as prosecutors Seth Peterson and David Rodriguez tried to lay the foundation that would allow the confessions.

Under case law and trial rules, the prosecutor must prove corpus delicti, or show a body of evidence to suggest a crime actually took place before the incriminating statements can be introduced. Ultimately, O'Toole did not allow them.

Then, when the prosecution finished its case, the defense attorneys called for what's known as a "Rule 20," which asks the judge to rule from the bench as to whether the prosecutors have provided sufficient evidence to proceed.

O'Toole granted the motions for Hernandez and Urbalejo but not for Ruiz.

And O'Toole allowed prosecutors to read aloud Ruiz's earlier testimony before a grand jury.

In that testimony, Ruiz told how he was trying to return to a landscaping job in Indio, Calif.

He said he and others had crossed the border near San Luis and walked for two nights to meet the transport vans at a small ranch.

He admitted he had agreed to drive one of the vehicles to get his smuggling fee dropped from $1,500 to $500.

He claimed, however, he did not know the names of the people who organized the excursion.