Not long after midnight on March 25, 2010, U.S. Border Patrol agents found fresh shoe prints leading north from the U.S.-Mexico Border in Southern California, near the port of entry in Tecate, Mexico. They followed the prints and found 12 Mexican nationals hiding in heavy brush.
The Mexicans told the agents that their guides had gone ahead. After the 12 were taken into custody, the agents found more footprints and followed them without success. At about 6:30 a.m., the agents were informed that two men had been seen near where they had been searching. They returned to the area and found 44-year-old Jonathan Leal-Del Carmen and Domingo Gomez-Aguilar hiding in thick brush. Both were arrested.
Leal-Del Carmen and Gomez-Aguilar were indicted by a federal grand jury in San Diego on charges of smuggling aliens for financial gain and bringing in undocumented aliens.
Prior to trial, Leal-Del Carmen’s attorney learned that the prosecution had taken video statements from four of the 12 people initially arrested and deported the other eight. The video tapes showed that one of the four told agents that Leal-Del Carmen was not leading the group. After learning that this witness had also been deported already, the defense sought to introduce the video tape, but the motion was denied.
Gomez-Aguilar pleaded guilty and Leal-Del Carmen went to trial before a jury in U.S. District Court. The three men who were arrested in the initial group said they had paid several thousands of dollars to Leal-Del Carmen to be led into the U.S.
On November 19, 2010, Leal-Del Carmen was convicted by the jury of bringing in undocumented aliens and acquitted of smuggling aliens for financial gain. He was sentenced to 18 months in prison.
In September 2012, the U.S. Court of Appeals for the 9th Circuit reversed the conviction and ordered a new trial. The court held that Leal-Del’s constitutional right to a fair trial was violated because the witness who said Leal-Del Carmen was not the leader was deported, and the judge barred the video testimony from the trial. The testimony of the deported witness “casts doubt on the government’s witnesses, whose uncontradicted testimony was that Leal-Del Carmen did give orders,” the court ruled.
The prosecution claimed that they did not know if the agents interviewed any of the other eight people arrested, but the appeals court viewed this with skepticism. “We find it suspicious that the government would interview some of the witnesses but not the others,” the court said. The court also noted that the jury apparently had some doubt about the testimony of the prosecution witnesses because Leal-Del Carmen was acquitted of smuggling for financial gain despite witness testimony that they paid him.
On December 10, 2012, the prosecution dismissed the charges. Leal-Del Carmen had been released in July 2011 after completing his sentence, and was then deported.
– Maurice Possley