9th Circuit upholds murder convictions linked to slain Border Patrol agent

Figure in Fast and Furious ring to be sentenced
This undated photo provided by U.S. Customs and Border Protection shows U.S. Border Patrol agent Brian A. Terry. Terry was fatally shot north of the Arizona-Mexico border while trying to catch bandits who target illegal immigrants.  (AP Photo/U.S. Customs and Border Protection, File)

A federal appeals court has rejected claims by two men that they were illegally extradited from Mexico to Arizona where they were convicted in connection with the 2010 murder of a Border Patrol agent.

Judge Sandra Ikuta of the 9th Circuit Court of Appeals acknowledged that the treaty between the United States and Mexico allows extradition only according to specific terms. And, in general, it requires that the crime for which the United States seeks someone also be a crime in Mexico.

But Ikuta, a President George W. Bush appointtee, writing for the unanimous three-judge panel, said the crimes charged against Ivan Soto-Barraza and Jesus Lionel Sanchez-Meza are “substantially analogous” to similar crimes under Mexican law.

Sandra Ikuta
Sandra Ikuta

Anyway, she said, Mexico agreed to extradite the two men on all the charges listed in the indictment. And that, Ikuta said, shows that the treaty’s principles have been satisfied.

The case involves Operation Huckleberry, a 2010 effort by the Border Patrol Tactical Unit to apprehend gangs that preyed on drug smugglers in what is known as the Arizona Mesquite Seep, an area of rough terrain west of I-19 about 11 miles north of the international border.

In December of that year, Brian Terry was among six agents deployed to the area for a 48-hour operation. Terry was hit by a bullet and later died.

FBI agents at the crime scene linked rifles, backpacks and their contents to the two men along with four others who eventually were indicated on murder charges, conspiracy to interfere with commerce by robbery, assault on four Border Patrol officers, and carrying and discharging a firearm in furtherance of a crime of violence.

About a year and a half later, Mexican authorities arrested Sanchez-Meza where he was interviewed by FBI agents. He eventually confessed.

A year later Soto-Barraza confessed after being interviewed. Both eventually were extradited to the United States where they stood trial and were convicted, with a life sentence imposed on both on the murder charge and additional time for the other charges.

On appeal, attorneys for the pair cited the “dual criminality” provision of the treaty. Ikuta said it says an accused person can be extradited “only if the conducted complained of is considered criminal by the jurisprudence or under the laws of both the requesting and requested nations.”

There also is a list of categories of offenses.

But the judge also said there’s another provision which says extradition shall also be granted for “willful acts,” which, even though not listed, are punishable in accordance with federal laws in both countries by prison terms of at least one year.

In seeking to void the extradition, defense attorneys focused on the “felony murder” charge. That, in essence, says that someone can be charged with murder for a killing that occurs during a felony, even if that person did not actually fire the weapon.

The defense argued that the statutes listed in he treaty criminalize only “simple homicide,” and that there is no counterpart to felony murder in Mexico. They also argued that Mexican law does not punish interference with commerce by robbery of an illegal substance — in this case, drugs being smuggled across the border — and does not recognize the crime of assault on a federal official unless that person was physically injured in fear for his life.

Finally, they said the treaty precludes the government here from imposing a true life sentence as life sentences in Mexico last no more than 70 years.

Ikuta, however, said the Mexican government, in issuing the extradition orders, said the U.S. charges conformed to the terms of the treaty. And those orders, she said, found similar provisions under Mexico’s Federal Penal Code for each of the charges in the indictment.

“The principle of dual criminality does not requires that the crimes be identical,” the judge wrote. “Rather only the ‘essential character’ of the acts criminalized by the laws of each country must be the same, and the laws substantially analogous.”

The appellate court also brushed back various other challenges to the specifics of each conviction.



Business leaders say Arizona should engage in crafting NAFTA 2.0

Cars wait in line for inspection at the Mariposa Port of Entry in Nogales. The port underwent a $250 million upgrade but some trade groups say it has not lived up to its promise. (Photo courtesy of Customs and Border Protection)
Cars wait in line for inspection at the Mariposa Port of Entry in Nogales. The port underwent a $250 million upgrade but some trade groups say it has not lived up to its promise. (Photo courtesy of Customs and Border Protection)

Arizona business leaders said the state’s commerce experts and political actors should help craft a new North American Free Trade Agreement if the two-decade-old agreement is renegotiated.

At a forum in Phoenix this morning, business leaders emphasized how NAFTA has benefited the state’s economy, noting that more than 100,000 Arizona jobs depend on trade with its southern neighbor and roughly $17 billion in trade flows between Arizona and Mexico.

The business leaders said SB1070, which requires Arizona law enforcement authorities to inquire into someone’s legal status during routine stops if there is suspicion he or she is in the country illegally, was a low point in the relationship between Arizona and Mexico.

But Jessica Pacheco, president of Arizona-Mexico Commission, said she has since seen improvement in Mexico’s perception of Arizona, and stressed that a strong and productive relationship with Arizona’s neighbor “only helps position ourselves for future prosperity.”

Jaime Molera, who serves on the Arizona Chamber of Commerce’s Board of Directors, also credited Gov. Doug Ducey for improving ties with Mexico.

“The feedback that we’ve received from politicians in Mexico, more importantly business organizations (and) organizations that were perceiving Arizona to be a state that was unwelcoming, has totally changed,” Molera said. “Now, they have a perception that we want to work with this governor. They want to work with our (policymakers), and they have.”

Lea Marquez Peterson, president and CEO of the Tucson Hispanic Chamber of Commerce, said a new NAFTA agreement could benefit the state, and added that a positive relationship with Mexico is critical to people in southern Arizona.

“We know that Mexican nationals spend over a billion dollars a year in just Pima County,” Marquez Peterson said. “So, the tone and respectful way in which this could be managed is very important to us because it impacts our neighbors.”

Steven Zylstra, president and CEO of Arizona Technology, emphasized that Mexico “couldn’t be a more important trading partner to Arizona.”

Zylstra noted the U.S. is at full employment, and the technology sector is struggling to fill jobs. He said Arizona’s proximity to Mexico gives the state a leg up, and Mexico could provide the talent tech companies need to thrive.

Economist Jim Rounds, who joined the panel at Arizona Capitol Times’ Morning Scoop, said that since the last market crash, Arizona has done “a lot of things right.”

He warned against a border tariff, and said consumers are ultimately going to pay for a border wall, if the Trump administration builds one.

“If for some reason NAFTA 2.0 ends up being something draconian… it’s going to cause a lot of ripple effects,” Rounds continued. “It’s not as simple as saying, ‘Sorry, you’re going to have to pay a little bit more for that one device.’ You have the consumer side, and then you have a very heavily integrated business side that is going to create far-reaching harm if they’re not careful.”

During the presidential campaign last year, Trump called NAFTA “the worst trade deal ever.” Trump believes NAFTA is unfair to American workers, and has often railed against trade imbalance with America’s trading partners.

NAFTA was negotiated in 1994 by President Clinton, and was intended to promote free trade by streamlining and simplifying the exporting process among Canada, the U.S. and Mexico.

Trump had threatened that if he could not renegotiate “a fair deal for all,” the U.S. would pull out of NAFTA.

Death row thinning in Arizona, nationally – reasons vary

The death row population in Arizona has largely been on the decline since 2010, following a nationwide trend observed over the past 15 years. Meanwhile, experts are at odds about the forces at play.

According to the Bureau of Justice Statistics’ most recent data – accounting for prisoners under sentence of death as of December 31, 2015 – Arizona did see its first uptick in death row inmates in five years with the addition of two inmates in 2015. But that runs counter to the slow yet steady decline of the state’s death row.

Ron Reinstein
Ron Reinstein

Ron Reinstein, a retired Maricopa County Superior Court judge who now chairs the state’s Capital Case Oversight Committee, attributed the trend to ongoing challenges in obtaining the drugs states like Arizona need to perform lethal injections, the high costs of capital cases and, particularly, stronger defense performances.

Those factors resonate with an analysis of the data done by the Death Penalty Information Center.

Death rows are shrinking faster than new death sentences are imposed, the information center concluded. The data shows 28 inmates nationwide were executed in 2015 compared to 82 removed by other means – 49 new inmates were admitted that year. That means exonerations, reversals of death sentences or convictions and death by other causes – including natural death while in wait – have occurred at a higher rate than the executions sought by prosecutors.

Maricopa County Attorney Bill Montgomery (Cronkite News Service Photo by Christina Silvestri)
Maricopa County Attorney Bill Montgomery (Cronkite News Service Photo by Christina Silvestri)

Maricopa County Attorney Bill Montgomery had other thoughts on what might explain the trend.

He said fewer death sentences have coincided with a decline in the sort of crimes that might lead prosecutors to seek the death penalty. With fewer murders committed – 2015 saw the lowest homicide rate since 1960, he said – a decline in death penalty cases is expected.

Reinstein questioned that suggestion.

“As far as Arizona goes, there’s Maricopa and then there’s the rest of the state,” he said.

He said Montgomery’s office “seems to be filing the same type of cases they always had, and that number – somewhere between 65 and 70 – has pretty much held true ever since the drop off” following former County Attorney Andrew Thomas’ administration, under which death penalty cases exceeded 140.

“If what Bill’s saying is true, then I think you’d see that number go down more… We haven’t seen any kind of reduction in that 65 to 70 range.”

And since roughly September 2015, according to Reinstein, only one of the nine capital cases that went to trial in Maricopa County ended with a death sentence.

That could simply be a result of the types of cases presented to jurors, he said, and could easily change if the county saw a spurt of murders involving torture or contract killings.

Prosecutors in Yuma County, for example, successfully argued for the death penalty in a case involving six victims. Reinstein said that was the first death sentence imposed outside of Maricopa or Pima counties in nearly a decade.

And that, in Reinstein’s view, seems to reflect the difficulty of convincing 12 jurors to unanimously find death is warranted.

According to the Death Penalty Information Center, most Americans prefer life without parole, an option in Arizona, to the death penalty. Public opinion may act as a deterrent to the costly battle over a death sentence or even public office.

Montgomery disagreed with that assertion.

In terms of public opinion–which still polled favorably in 2015 – he said that does not figure into whether his office seeks a death sentence.

“It’s not like we’ve got this huge data set of jury verdicts that would allow us to extrapolate a general or any kind of specific sense among the electorate,” he said.

And as for his own personal politics: “I’ve never made the death penalty a key component of any campaign or re-election as the county attorney, nor have I seen – I can’t recollect any county attorney in Arizona making that a significant issue,” he said. “I think that’s low-hanging fruit for some people to try to justify why the number of capital cases goes up or down.”