Pubdate: Mon, 4 Jan 2010
Source: Arizona Republic (Phoenix, AZ)
Copyright: 2010 The Arizona Republic
Contact: http://www.azcentral.com/arizonarepublic/opinions/sendaletter.html
Website: http://www.azcentral.com/arizonarepublic/
Details: http://www.mapinc.org/media/24
Author: Robert Anglen, The Arizona Republic

EFFORT VS. DRUG SMUGGLERS STIRS CRIES OF INJUSTICE

Caught at U.S. Border, Suspects Sent to Mexico to Face Charges

No fear. That was the mantra of Mexican drug smugglers bringing
marijuana into the United States.

No fear of arrest. No fear of prosecution. The worst-kept secret on
the border for years was that, until more recently, U.S. authorities
would not even try to prosecute cases involving less than 500 pounds
of marijuana.

Furthermore, U.S. laws and rules of evidence that aim to ensure
justice make some cases hard to stick. The most trouble that many
small-time smugglers faced was a few days' inconvenience before being
deported.

But a new program being tested at the Nogales ports of entry could
radically change the way these cases are handled along the entire
U.S.-Mexican border. Instead of being deported and set free, some
marijuana smugglers arrested in the United States are being turned
over to Mexican authorities for prosecution.

The change in approach has led to claims that U.S. officials are
circumventing the U.S. Constitution by taking advantage of
less-stringent Mexican legal standards.

Eleazar Gonzalez-Sanchez was the first smuggler turned over to Mexican
authorities under the program. Like most smugglers, the 27-year-old
Sonoran was schooled in what to expect if caught, authorities say. He
rolled up to the Dennis DeConcini Port of Entry with 44 pounds of
marijuana stashed in the trunk.

Even after customs inspectors found the drugs and placed him in cuffs,
he breathed easy, U.S. officials said. The car wasn't his. He could
plead ignorance. U.S. prosecutors could not prove that he intended to
smuggle the drugs.

A few hours later, he was being escorted across the border, just as
expected. Only this time, someone was waiting for him on the other
side. As realization dawned, Gonzalez-Sanchez's steps faltered,
authorities said. His confidence faded. He sputtered protests. Then
customs authorities handed him over to a pair of federales, or Mexican
federal officers.

"(He) was very surprised when they showed up and he found out he was
going back with them," said Matt Allen, special agent in charge of
Immigration and Customs Enforcement Office of Investigations in
Arizona. "This is news to (smugglers). Even with a small amount, you
are going to go to jail."

The test program is the result of a three-way agreement among ICE,
Customs and Border Protection and the Mexico Attorney General's Office.

Since Gonzalez-Sanchez's Oct. 24 arrest, 10 smugglers have been nabbed
by Customs and Border Protection agents and turned over to Mexican
authorities; the suspects face illegal-exportation and drug charges.

The cases represent the first time that Mexico is prosecuting
drug-smuggling cases based on evidence and a criminal complaint lodged
by a foreign law-enforcement agency.

For authorities on this side of the border, it's a way to get
convictions in cases that U.S. laws make impossible to prosecute. On
the Mexico side, it is a new tool in President Felipe Calderon's
escalating war on drug cartels.

"If it works in Arizona, then I certainly would hope to expand it to
other parts of the border," Allen said. "One of the significant pieces
in this is that the Mexican government is stepping up and taking
responsibility."

Some civil-rights attorneys, however, question the legality of the
program.

"I think they are trying to circumvent our Constitution," said Isabel
Garcia, director of the Pima County Legal Defender's Office. "We
should not be engaging Mexican authorities to prosecute people who
would be innocent in our jurisdiction."

Garcia said if customs agents don't have enough evidence to build a
criminal case, the defendants should be released.

"This is another PR move to make the public believe that we are doing
something against drugs," she said.

For years, the U.S. Attorney's Office had a threshold requirement and
would not prosecute cases involving less than 500 pounds of marijuana.
Even after the threshold was abolished more than a year ago, some
cases still could not be prosecuted because of the inability to prove
intent.

U.S. courts require prosecutors to show that defendants have "intent
and knowledge" of the crime, Arizona U.S. Attorney Dennis Burke said.
He added that barring a direct confession, it is extremely hard to
show intent when a defendant can say he was given the car and didn't
know the drugs were inside.

But in Mexico, those legal standards do not apply.

Simply having the drugs is enough to build a case. In short,
possession is more than nine-tenths of the law.

"That is a legitimate basis for what you need to prove in a Mexico
court," Burke said.

All of the cases turned over to Mexican authorities involve drugs
smuggled inside a vehicle registered to someone other than the driver.

Burke called the agreement with Mexico "unprecedented" and said he did
not believe that it constitutes an end-run around U.S. jurisprudence.
He points out that Mexican nationals arrested on the border are being
prosecuted in their own jurisdiction based on the laws there.

Nogales is the busiest border crossing in Arizona. Cases involving
smugglers turned over to Mexico are handled efficiently and quickly at
the two ports of entry. Often the smugglers are handed over to Mexican
authorities within a few hours of being stopped. The Mexico Attorney
General's Office has two staff members assigned to Nogales, Sonora, to
handle the new cases.

Under the 2-month-old agreement, U.S. authorities are responsible for
conducting an investigation and seizing evidence, then turning over
case notes and core samples of the drugs to Mexico
authorities.

ICE officials are called in immediately after customs agents find
drugs in a vehicle. After ICE initiates a criminal investigation,
agents consult with the U.S. Attorney's Office to determine if
prosecution is viable in the U.S. If so, the prisoner is transferred
to a holding facility and processed into the court system.

If not, agents contact the Mexico Attorney General's Office and
arrange the handover of the defendant.

In the case of Gonzalez-Sanchez, a federal judge in Mexico found that
there was enough evidence and probable cause to proceed with a
prosecution. Mexican authorities have not provided any additional
information on the case.

Burke said word of the new program will spread quickly through the
drug community. The threat of Mexican jail was apparently enough to
scare Gonzalez-Sanchez.

"I was told . . . he tried to resist when Mexican officials put him in
the vehicle," Burke said. 
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