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Lawmen: Limit put on drug cases



By Jesse Froehling/Wick News Service

NOGALES - Many people want a fence built along the U.S.-Mexico border as a means to stop drug smuggling, terrorism and illegal immigration.

But drug smugglers can be caught red-handed and still go free, as long as they're carrying less than 500 pounds of marijuana, some officials say. Several Santa Cruz County officials said the unwritten rule at the U.S. Attorney's Office in Tucson is that if a smuggler is accused of moving less than 500 pounds of pot through a port of entry, that person will walk away, generally.

Wyn Hornbuckle, public information officer for the U.S. Attorney's Office in Arizona, said he knew of no such threshold, but Santa Cruz County officials say one definitely exists.

An attorney in the Cochise County Attorney's Office said he has heard of such a threshold.

Brad Giles, chief narcotics officer at the Tucson U.S. Attorney's Office, said he could not comment on prosecution strategies because the office has found that smugglers have adapted in the past.

The problem is complex. Santa Cruz County officials said they do not blame the U.S. Attorney's Office. They say the office staff is too small and overworked.

Exacerbating the situation is the recent national attention on immigration reform. The Bush administration is demanding the office focus on immigration. As a result, the smaller drug cases are tossed out, the officials say.

But small is a relative term when it comes to dope. The street market here for 499 pounds of marijuana is about $399,000, by U.S. Border Patrol standards.

Santa Cruz County lawmen say the federal government expects them to pick up the slack and that the issue has been divisive. Some officials feel they have an obligation to try the cases left dormant by the federal government, but others feel that by cleaning up after the feds, their good deeds will be expected to become regular.

Santa Cruz County Attorney George Silva confirmed the threshold and is willing to take the cases to court.

"They're (local agencies and the U.S. Attorney's Office) doing the best job they can with their resources," he said. "If anyone's to blame it's the U.S. Department of Justice or the Bush administration. They're throwing billions of dollars at immigration, but they're letting drug smugglers go free."

Lt. Jerry Castillo, commander of the Metro Santa Cruz County Task Force, a conglomeration of law enforcement agencies that have grouped together to tackle the drug problem, also confirmed the 500-pound benchmark and was quick to divert blame.

"They're (U.S. Attorney's office) just overwhelmed," he said.

Nogales Police Chief John Kissinger agreed.

"I know that the U.S. Attorney's Office in Tucson is declining criminal prosecutions of certain narcotics cases at the ports because of a threshold, but I can't say what that threshold is," Kissinger said.

Despite the threshold, Kissinger emphasized that any inaction on a federal level will not affect the city department's operations.

"The Nogales Police Department is going to continue to work to remove drugs and drug dealers off the streets," he said.

Santa Cruz County Sheriff Antonio Estrada said the smugglers are charged on a case-by-case basis.

"I have no idea what gets turned loose," he said. "We'd have to go back and see how many we get, but my understanding is that the attorney's office makes the decision on a case-by-case basis."

David Pardee, a deputy Cochise County attorney assigned to the drug prosecution unit, said he had heard of a threshold amount for federal marijuana prosecutions.

"I can't tell you what federal policy is other than from heresay," he said. "But my understanding is that it's a quarter of a ton (500 pounds)."

Drug-smuggling cases declined by the U.S. Attorney's Office are referred to the county attorney "all the time," Pardee said, but his office has a policy of declining those cases as well, at least under most circumstances.

The vast majority of referred cases involve defendants whom Pardee termed "pass-throughs," Mexican nationals or other non-locals on their way to Tucson or Phoenix with a drug load.

"Those are cases we will not take, if the arrest was initiated by a federal officer," Pardee said.

But if the defendant is a local person or the arresting law enforcement agency is from the county, the county attorney might be interested in the case.

Meanwhile, Silva said, Customs agents are growing weary of their work, knowing anyone they seize with less than a quarter ton of marijuana will most likely go free.

Brian Levin, public affairs liaison for the Tucson sector of U.S Customs and Border Protection, puts it differently.

"We tell our guys to take pride in what they're doing he said, and they do an amazing job catching (smugglers). The analogy we like to use is that we're like the beat cops. We're the guys on the street doing the arresting. We find it, seize it then call in ICE (Immigration and Customs Enforcement) to do the investigation. Our authority ends there," Levin said.

Several telephone messages requesting comment from Terence Azvill, the regional director of high intensity drug trafficking areas from the Tucson office of the National Drug Control Policy, went unanswered.

JESSE FROEHLING writes for The Nogales International, a Wick Communications Co. newspaper. Herald/Review reporter Jonathan Clark contributed to this report.