The accused in this case was apprehended by authorities transporting a Mexican migrant residing in the United States unlawfully in Albuquerque, New Mexico. The cooperation of two police informants, at least one of which had previously worked with the accused in smuggling migrants into the US, led to apprehension of the accused. The accused later appealed against his conviction to the United States Court of Appeals for the Tenth Circuit on a number of grounds, all of which were rejected.
On 14 March 2012, an informant working for the FBI, referred to in court proceedings as 'John Smith' transported the smuggled migrant from El Paso, Texas to a motel in Las Cruces, New Mexico. On 15 March 2012, a second informant, referred to as 'James Jones' then took the smuggled migrant from Las Cruces through a Border Patrol checkpoint just outside the city. The smuggled migrant was hidden in the sleeper compartment of the truck's cab. Mr Jones took the smuggled migrant to a truck stop in Albuquerque, New Mexico, where he handed over the smuggled migrant to the accused, Mr Gonzalez-Perez. Shortly after leaving the truck stop with the smuggled migrant, Mr Gonzalez-Perez and the migrant were intercepted by a Border Patrol agent and were taken into custody.
The smuggled migrant, Mr Perez-Soto paid USD 1200 to an FBI informant for transport from El Paso, Texas to Albuquerque, New Mexico.
Mr Gonzalez-Perez complained in a phone conversation to an FBI informant that his profits from the smuggling venture would be very small.
United States District Court for the District of New Mexico
Prior to trial, the smuggled migrant was allowed to return to Mexico. This led the accused to file a motion to dismiss the indictment and a motion in limine to preclude the prosecution from offering into evidence any of Mr Perez-Soto's post arrest statements concerning his nationality, immigration status, or the manner of his entry into the United States.
The judge took the motion to dismiss the indictment under advisement until the conclusion of oral evidence at the trial, before denying the motion. The motion in limine for the statements made by Mr Perez-Soto to be deemed inadmissible was granted because Mr Gonzalez-Perez had not been given an opportunity to cross-examine Mr Perez-Soto.
At trial, the prosecution introduced Mr Perez-Soto's statements about his immigration status in breach of the liminal order for them to be excluded. Mr Gonzalez-Perez did not object to this at trial.
After a two-day jury trial, the jury returned a guilty verdict.
United States Court of Appeals for the Tenth Circuit
Mr Gonzalez-Perez appealed to the United States Court of Appeals for the Tenth Circuit on five grounds:
(1) the US government's decision to allow Mr Perez-Soto to return to Mexico, such that he was unavailable to give evidence at the trial, violated Mr Gonzalez-Perez's Fifth Amendment due process rights and his Sixth Amendment right to compulsory process;
(2) the testimony of an FBI agent at trial impermissibly introduced Mr Perez-Soto's post-arrest statements concerning his immigration status;
(3) at trial, a Border Patrol agent had improperly offered expert opinion about Mr Gonzalez-Perez's mental state in violation of the Federal Rules of Evidence;
(4) a witness for the prosecution had made two errors translating statements from Spanish to English which resulted in an unfair trial;
(5) the cumulative effect of these errors required his conviction to be reversed
With respect to the first ground of appeal, the Court of Appeals held that the appellant had failed to establish that the government agents acted in bad faith in allowing Mr Perez-Soto to return to Mexico, as required for a decision to allow a witness with potentially exculpatory information to depart the country to be in breach of due process rights.
The Court of Appeals also held that Mr Gonzalez-Perez had failed to make out the second ground of appeal. On appeal, the prosecution admitted that it had erred in introducing testimony about statements made by Mr Perez-Soto was inadmissible. The Court of Appeals assumed, without deciding, that this constituted plain error, but held that the appellant had failed to establish to a reasonable probability that, but for the error, the result of the proceedings would have been different, as was required for the decision of the District Court to be overturned. The prosecution had presented extensive evidence demonstrating that Mr Perez-Soto was residing in the US unlawfully.
The third ground of appeal was rejected as the evidence of the expert witness spoke to migrant smuggling in general, not specifically to Mr Gonzalez-Perez's intention in the commission of the offence. The expert witness's evidence left room for the jury to determine whether Mr Gonzalez-Perez had the requisite intention. Furthermore, even if plain error was established, it did not affect the outcome of the proceedings. 'Copious' other evidence was presented demonstrating the appellant's intent to help the migrant remain in the country illegally.
With respect to the fourth ground of appeal, the Court refused to consider an affidavit from a police officer that some of the translations of Spanish words given at trial were inaccurate. The Court did so because this affidavit was available at trial but had not been presented by Mr Gonzalez-Perez.
Finally, the Court held that Mr Gonzalez-Perez had failed to establish cumulative error. As such, the Court affirmed the original decision.
Mr Perez-Soto claimed that he had first entered the United States in 1989 and lived in Los Angeles, California for nine years. He had then moved to Cactus, Texas in 1997. It was reported that at some point, he had a work authorisation permit to reside in the United States. In 2009 he was detected by police driving with his uncle's driver's licence in Oklahoma City, Oklahoma. In July 2011, facing the prospect of deportation, Mr Perez-Soto elected to return to Mexico voluntarily and surrendered his work authorisation permit. He had only resided in Mexico for a few months before deciding to return to the United States.
Mr Gonzalez-Perez was involved in this venture in transporting the migrant after the migrant had already entered the US illegally. It appears that Mr Gonzalez-Perez was also to be involved in finding employment for the migrant in the US.
Mr Gonzalez-Perez had been involved in smuggling migrants into the US from Mexico prior to this smuggling venture. Information about any prior convictions for migrant smuggling was unavailable at the time of writing.
Two FBI informants, 'John Smith' and 'James Jones' were involved in the smuggling venture which led to the detection of Mr Gonzalez-Perez. Mr Smith had been arrested and charged with the illegal transportation of an alien in Texas in mid-2011. He had agreed to cooperate with the FBI in exchange for charges against him being dropped. As part of his cooperation with the FBI, he identified Mr Gonzalez-Perez as a smuggler that he had worked with previously and cooperated with the FBI in the smuggling venture which led to the detection of Mr Gonzalez-Perez.
United States Court of Appeals for the Tenth Circuit
United States v Gonzalez-Perez (10th Cir, No 13-2147, 5 August 2014)
This entry was copied from The Migrant Smuggling Case Database, launched by the University of Queensland Migrant Smuggling Working Group in August 2013.
