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BISBEE — A judge ruled at a preliminary hearing Tuesday that an illegal immigrant from Mexico can be tried for violating the state’s human smuggling law.
The key issue presented to David Morales, justice of the peace in Cochise County Justice Court 1, was whether Jose Alberto Chavez-Rojas, 37, of Mazatlan, state of Sinaloa, would have profited or enjoyed commercial benefit from the alleged crime — a requirement of Arizona’s human smuggling statute.
Chavez-Rojas testified that he crossed the border illegally into Naco, Ariz., with 14 other people and was taken to a house in Phoenix. His companions then began to pay off their smugglers’ fees and leave the house. Soon, he was the only one remaining.
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“I was the last one left because I didn’t have the money to pay,” he said. “So I was asked if I knew how to drive, and I said yes.”
He was given a Ford pickup truck and told to follow another vehicle back to Naco. He was afraid that he would be hurt if he refused, he said.
“They didn’t tell me that I was going to traffic in illegals; they told me I was going to drop off the vehicle,” he said, adding that he never met his smuggler in person and that he never collected any money from the 13 people who got in his truck.
He said he hoped that by driving the truck, he could pay off his debt and go back to Phoenix to look for a job.
Cameron Udall, deputy prosecutor at the Cochise County Attorney’s Office, told Morales that an exchange of services is a for-profit transaction, and therefore Chavez-Rojas could be charged with the crime.
Defense attorney Chris Lewis disagreed, saying that Chavez-Rojas was coerced into driving the truck and that his role in transporting the undocumented passengers could not be legally defined as a profitable activity.
Morales, noting that he only had to find probable cause rather than guilt beyond a reasonable doubt, said that the evidence of debt forgiveness was enough for Chavez-Rojas to be tried for human smuggling.
He also ruled that Chavez-Rojas could be tried for a class 4 felony offense, not for the more serious class 2 offense that the state had initially alleged. Udall acknowledged that she did not have enough evidence to show that one of Chavez-Rojas’ passengers was a child under 18 traveling without a parent, a requirement for the class 2 charge.
Chavez-Rojas, who is being held without bond at Cochise County Jail, is also charged with unlawful flight from a law enforcement officer, a class 5 felony; and driving more than 85 miles per hour, a class 3 misdemeanor.
No defendant has been convicted of human smuggling in Cochise County since the Arizona legislature made the activity a state offense in August 2005.
In February, the Cochise County Attorney’s office dropped human smuggling charges against a Naco man after a Superior Court judge ruled that prosecutors could not present statements in which the defendant’s passengers admitted to being illegal immigrants.
Because the passengers had been repatriated to Mexico before they could be cross-examined by a defense attorney, Judge Charles Irwin said, their statements were inadmissible as evidence.
William Wohlenhaus, the Arizona Department of Public Safety officer who arrested Chavez-Rojas on May 4 along Highway 92 in Palominas, testified Tuesday that he had been given a surveillance video recorded by the Border Patrol that showed the 13 passengers crossing the border illegally and getting into Chavez-Rojas’ truck.
Udall told Morales that the video eliminated the need to introduce statements from the passengers to prove that they entered the county illegally.
Speaking after the hearing, Lewis agreed that if the video shows a clear, uninterrupted image of the passengers from the time they crossed the border to when the truck was stopped, it would likely eliminate his need to cross-examine them.
herald/review reporter Jonathan Clark can be reached at 515-4693 or by e-mail at jonathan.clark@bisbeereview.net.
Rudy Lorrah wrote on May 18, 2007 8:22 PM: