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'Coyote' law still untested by a jury

Michael Kiefer
The Arizona Republic
Aug. 18, 2006 12:00 AM

A year ago, Maricopa County Attorney Andrew Thomas theorized he could prosecute undocumented immigrants who paid to be smuggled into the United States through Arizona.

He could do so, he felt, by applying conspiracy statutes to the state's new human-smuggling law. Paying a human smuggler, or "coyote," would mean conspiring with him.

Despite protests from defense attorneys and Hispanic advocacy groups, the theory held up in court. But after 263 arrests and 121 convictions under what has come to known as the coyote law, no one has yet been convicted of conspiracy to commit human smuggling. No jury has even entertained the charge.

Whether a jury will convict on the charge remains to be seen.

Two men went to trial on conspiracy charges in July, but they were acquitted by the judge before the jury had a chance to weigh in.

The rest of the so-called conspirators had charges dropped or pleaded guilty to a lesser offense to get out of jail. Another 65 defendants still await trial; one is expected to enter a plea today.

Another trial was supposed to start this week, but at the last minute, the County Attorney's Office veered away from trial and offered the defendants what one attorney called "smokin' deals."

A jury did convict one man of human smuggling, a would-be landscaper who had been offered a discounted fee to be smuggled into the country if he would take the wheel of a van for a couple of hours.

He was sentenced to probation and returned to Mexico.

"I would hope and trust that if we convict a classic coyote, somebody who is intimately involved in this and profiting substantially from the human smuggling trade, that he will get more than just probation after being convicted," Thomas said.

The two men who went to trial for conspiracy were acquitted because Superior Court Judge Thomas O'Toole ruled there was insufficient evidence for the case to continue.

Five more conspiracy suspects, arrested at the same time as the first two, were slated to start trial Thursday. They were to be tried on the same evidence with essentially the same facts and the same witnesses.

Prosecutors massaged the case and petitioned the judge to rule on whether there was sufficient evidence before the trial started. Last week, O'Toole agreed there was.

Then, the day before trial, all but one defendant who has already been deported were allowed to plead guilty to misdemeanors.

"The reason was we had to offer them misdemeanors in order to get them to agree to set up the evidentiary hearing that resulted in a favorable ruling by Judge O'Toole," Thomas said.

The ruling would help in future cases, Thomas said, even though such decisions are specific to a single case.

Joey Hamby, a defense attorney representing one of the last defendants, had another explanation: The county attorney was afraid of losing again.

"Probably where they were most concerned is that this would come out and look like a total political black eye," he said.

There was no press conference to announce the pleas, in marked contrast to the political uproar at the outset of the trial: the protests, the press conferences, the squabble between the county sheriff and the federal Immigration and Customs Enforcement agency.

"Nevertheless we've have tremendous success so far," Thomas said. "At this point, frankly, I think that we are set up to finally obtain convictions in these cases. And I believe that is coming."


Testing the law


On March 2, Maricopa County Sheriff's Deputy George Burke was making his weekly patrol of a dirt road on the westernmost edge of the county when he spotted two vans ahead.

As he closed the distance between vehicles, the vans turned off the main road into the desert and Burke pursued them.

When he caught up to them, the occupants of one van already had exited the vehicle and were sitting on the ground. The driver of the second van, Javier Ruiz Lopez, was still sitting behind the wheel.

Burke, a 15-year veteran of the Sheriff's Office, gathered the 53 passengers, who he assumed were undocumented immigrants, and radioed for backup from his office and the U.S. Border Patrol.

Phone calls flew between the field and Phoenix, and the decision was made: the Sheriff's Office would take custody, and the detainees would be the first people tried under the state's human smuggling law, which went into effect a year ago.

Ruiz Lopez, was charged with human smuggling; 48 others were charged with conspiracy to commit human smuggling.

The conspiracy charges immediately became the subject of debate and demonstrations.

"We are being opposed at every stage by very powerful forces that don't want to see the law enforced," Thomas said. "We have the criminal defense bar, interest groups, the Mexican government and other forces that try to stop us at every step of the way. We just have to deal with that."

But so far, court challenges to the law have failed.

In June, O'Toole ruled that the conspiracy charges did not pre-empt federal law and did not violate the Constitution.

The Arizona Court of Appeals refused to reconsider his decision, and the case went forward.

Most of the defendants were not willing to remain in jail awaiting trial; 29 pleaded guilty to the lesser felony of solicitation to commit human smuggling. They were sentenced to probation and ordered to leave the country.

Ruiz Lopez went on trial in July along with two men arrested at the same time as him; they were charged with conspiracy.

But O'Toole refused to allow prosecutors to enter the men's confessions into evidence because they had not established corpus delicti, {check} that is, a body of evidence to show that a crime had been committed.

He acquitted the men before the jury could consider their case.

Ruiz Lopez, on the other hand, was found guilty by a jury that was sympathetic, but felt he had crossed the line when he agreed to drive the van.


What's next?


As the trial and the plea agreements went forward, another controversy unfolded: what to do with the undocumented immigrants once the legal system finished with them.

When the two men acquitted of conspiracy were to be released, the Sheriff's Office called U.S. Immigration and Customs Enforcement to transport them back to Mexico and were told no.

Maricopa County Sheriff Joe Arpaio was flabbergasted. He learned that as many as 17 defendants, many of whom had been convicted of felonies, had walked right out of the jail because there were no orders to hold them for ICE pickup.

Arpaio started having his deputies transport them to Yuma and Casa Grande to turn them over to U.S. Border Patrol Agents.

"When a guy gets convicted, I have to do something with him," Arpaio said. "I can't keep him in the jail. Either he goes to (prison) or he's released. But I made my own personal decision. We transport them to the border or to the Border Patrol."

Since July 11, deputies have made 19 trips transporting 53 inmates to rendezvous with the Border Patrol.

Not all of them have made it home. According to their attorneys, the two men who were acquitted are still in federal custody awaiting deportation proceedings, while Ruiz Lopez, the convicted coyote, made it home to his family in Mexico on the day he was sentenced to probation and ordered to leave the country.

Shortly after the trial, O'Toole ordered that the remaining defendants be released from jail on their own recognizance. They showed up for all their court appearances. And when they signed their misdemeanor plea agreements, they walked out of the courthouse on their own.


Ready for trial


The next conspiracy cases go to trial in September. Prosecutors, investigators and defense attorneys all feel ready.

The first trial was plagued by first-time error: Defense attorneys cut the sheriff's investigation apart. Deputies who didn't speak Spanish asked the wrong questions of the suspects and failed to tie evidence in the two vans to evidence at the scene.

Arpaio says the investigation process has been refined.

"We have a specialty unit now," he said. "The first arrest was by a deputy. Now we have experts in a small special unit that responds."

Meanwhile, Thomas says his attorneys also will be more prepared to try the cases.

"Our cases are only going to stronger from here. Our office, working with the Sheriff's Office, has tightened the procedures for processing the cases," he said. "At this point, frankly, I think that we are set up to finally obtain convictions in these cases."

But the defense is gearing up as well.

"We have more ammunition on our side also," said Corwin Townsend, one of the attorneys who won acquittal for his client. He has another client facing trial.

"Everyone sees that these cases are winnable," he said.

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