Multiple Defendant Indictment in Tunnel and Drug Seizure, San Diego , CA
It may not be common knowledge that using a tunnel for illegal drug trafficking is a separate federal crime in and of itself. The crime carries with it a maximum sentence of 20 years under 18 US Code Section 555.
– 6 Defendants indicted in connection with building, financing and maintaining a 415 yard tunnel across the border to facilitate drug trafficking.
– Defendants were using a tunnel that led from El Sarape Restaurant in Mexicali to a 2 bedroom house in Calexico, CA.Agents discovered a hole in the floor covered with tile to conceal the shaft underground.
– The tunnel is located about 300 yards north of the international border
In addition to charges for conspiracy to distribute over 1000 kilograms of marijuana (mandatory minimum of 10 years in federal prison), the crime involving the use of an international tunnel carries a maximum sentence of 20 years in prison
– Defendants are also charged with maintaining and using the restaurant and 2 bedroom house as drug related premises. These charges also carry a maximum penalty of 20 years in prison.
– Conspiracy is a specific intent crime. All the Defendants must be found to have been in agreement with respect to criminal conduct.
– In practice, an indictment may name individuals that may not have actually physically handled or possessed drugs.
– To succeed in a jury trial conviction, the prosecutor must prove the extent of the agreement among the named defendants and the understanding among them. This relates to the specific element of intent in the crime of conspiracy.
– Only 5 of the defendants are charged with using a narcotics tunnel
– The charges allow for punishment for “recklessly disregarding the use of a tunnel.” That means there had to be some level of knowledge or awareness that a tunnel was being used for this illicit purpose and that these individuals recklessly disregarded that information (or turned a blind eye).
– Affirmative defenses can also include that they had insufficient involvement and knowledge about the tunnel and how it was used to be deemed “recklessly disregarding” any fact.
– The question may turn on whether a reasonable person in that position would have known or should have known that a tunnel was used in illegal activity such as moving drugs across the border between this “restaurant” and the 2 bedroom house and whether these individuals knew that these premises were being used as a “front”.
– Evidence of more than 1 ton of marijuana was recovered. A defense strategy may be employed to attack the conspiracy allegations which may undermine the determination that all Defendants should be charged with the entire amount of drugs recovered.
– Affirmative defenses in conspiracy drug charges can be that the Defendants did not have the same agreement, understanding, or knowledge about the illegal conduct or drug trafficking.
– Tunnels have been used to traffic humans and drugs. With strong implications for border security, the government has tightened its enforcement and prosecution of these crimes.
– Only one defendant is alleged to be responsible for the conspiracy to construct and finance this international tunnel. It will be interesting to see how the complaint may be amended and what parties may be added as defendants as the investigation progresses and other defendants may choose to cooperate with the government in hopes of a favorable plea bargain.