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Having no witnesses also denies the defendant possible evidence of his innocence. "I think the bulk of witnesses are going to say, 'I talked to somebody else in another state, and this poor guy was just giving us a ride,'" says public defender Wilson. "The guy driving the van is driving the van. He's not the kingpin."
Of the five human-smuggling cases that have gone to trial in Colorado since 2006, one resulted in an acquittal, one resulted in a conviction, and two were dismissed by judges for lack of evidence. In the last case, which was scheduled to go to trial August 3 in Summit County, the judge allowed the prosecutor to cut a last-minute plea deal with the defendant after she realized her best piece of evidence — the defendant's videotaped confession — would be inadmissible because it was in Spanish, and courthouse interpreters said it was too difficult to be accurate when translating from a video.
Most smuggling cases end in plea deals. Thus far, eighteen defendants have pleaded guilty to human smuggling. The same number have pleaded guilty to attempted smuggling, a lesser felony. The rest of the cases were either dropped, or the defendants pleaded guilty to much lesser crimes, such as criminal impersonation, trespassing or false reporting. Their sentences vary widely. In a few cases, the deals call for the smuggler to actually do time. But in more than half, the sentence is suspended on the condition that the smuggler, often an illegal immigrant himself, agrees to be deported and never return.
"They'd rather plead to a felony and head back home," DA Swanson says. "If they call our bluff, everyone knows we're going to lose because our witnesses are gone."
Take Humberto Martinez-Vieyra, who was charged with eight counts of human smuggling after a trooper pulled him over for swerving on I-70 on August 23, 2007. The trooper found twelve people crammed into the vehicle; Martinez-Vieyra gave the trooper a fake name and driver's license and then attempted to run when the officer's back was turned.
He was arrested, and the passengers were taken into ICE custody. Court records show that five were deported within five days. Prosecutors attempted to depose the remaining witnesses, but it's not clear whether that happened. Martinez-Vieyra, an illegal immigrant himself, pleaded guilty to one count of attempted human smuggling and forgery. He was given a sentence of one year in jail and three years in prison, which was suspended on the condition that he didn't return to the United States.
In another case, Jorge Martinez-Pena was arrested in October 2009, after troopers responded to a crash near the town of Deer Trail. Of the eleven passengers whom Martinez-Pena had been driving to Indiana and Missouri, three were injured and taken to the hospital; the rest were picked up by ICE. Martinez-Pena, a 28-year-old Mexican living in Phoenix, was arrested and charged with ten counts of human smuggling and three counts of careless driving. After spending seven months in jail, he pleaded guilty to careless driving and was released that day into the custody of ICE.
In a third case, Gopsalo Jose-Reyes was arrested by the Wheat Ridge police in April 2007, after the van he was driving stopped at a King Soopers so his ten passengers could use the restrooms to wash up. The store's security became suspicious and called the police. Though Jose-Reyes was charged with human smuggling, he eventually pleaded guilty to criminal impersonation and was sentenced to eighteen months in prison; six months of that sentence were suspended as long as he did not return to the U.S.
Though there are special federal visas that state prosecutors can apply for — with law enforcement's help — to keep undocumented victims in the country as witnesses, many say it's not clear whether the so-called U-visas apply to victims of human smuggling. The law lists several other applicable crimes, such as rape, kidnapping and human trafficking, but doesn't mention smuggling by name. As such, none of the prosecutors interviewed for this story say they've ever tried to obtain such a visa.
"It's hard to see folks being smuggled as victims. Obviously, they're paying the money and they want to be here," says Scott Storey, the district attorney for Jefferson and Gilpin counties. "I don't know if it's a good fit."
Most state prosecutors say all of these complications leave them feeling ill-equipped to handle human-smuggling cases. "The state wants us to prosecute these laws, which I feel are heinous crimes. That's great, but we need the mechanisms to do it," prosecutor Wilson says. "It's frustrating for a prosecutor like me who feels passionate [about this issue] and I can't do all that I can."
Pueblo County District Attorney and former state senator Bill Thiebaut puts it more bluntly: "I think the legislature, unfortunately, was looking at this law, and perhaps other laws at the time, not so much with the sensitivity of actually how they're going to be enforced, but rather giving the impression that some movement meant positive results were going to be accomplished for citizens on this very hot political issue."