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.