Pot smugglers with smaller loads being prosecuted now

Two years ago, an understaffed U.S. Attorney's Office in Tucson would have likely declined such a case - the office had a 500-pound threshold for marijuana cases. The office would have referred the case to a county attorney's office, which may or may not have taken it, depending on its criteria and resources.

Drug smugglers knew the score, and they knew they were likely to walk if they kept their loads below the threshold.

Not anymore - the threshold is history.

Thanks to an influx of funds from the Justice Department's initiative to fight border-related crime, the U.S. Attorney's Office in Tucson has nearly double the prosecutors it had three years ago. The office is prosecuting drug cases at a record clip - and going after people with smaller loads of pot in Southeastern Arizona, the busiest stretch along the U.S.-Mexico border for marijuana seizures.

The move has drastically reduced caseloads for county attorney's offices in Southern Arizona and has saved Arizona taxpayers thousand of dollars that used to go to prosecute, defend and jail defendants, and to pick up, store and burn marijuana.

"There is a benefit that occurs throughout the criminal-justice system," said Pima County Attorney Barbara LaWall. "It's an incredible cost savings."

Perhaps more important, more drug smugglers are being prosecuted. The U.S. Attorney's Office in Tucson prosecuted 1,298 felony drug cases in 2009 - more than double the 521 prosecuted in 2008. That includes not only marijuana, but other drugs.

The U.S. Attorney's Office always prosecuted sub-500-pound cases that came from the Tohono O'odham Nation as well as cases in which the suspects had guns or felony records. But until recently, the office referred hundreds of cases yearly to county attorneys.

The federal government is "doing what the people of this country expect them to do, which is holding people accountable when they traffic in drugs," said Santa Cruz County Attorney George Silva.

The two men arrested Jan. 11 on Arizona 83 near Sonoita - James P. Wallace, 31, and James T. Schuler, 22 - have been indicted by the U.S. Attorney's Office on marijuana-smuggling charges. They are facing five to 40 years in prison.

Well-known threshold

Word travels fast along the border, and drug smugglers knew about the U.S. attorneys' 500-pound threshold in Arizona.

It was common for drug runners caught with smaller loads to tell the arresting law enforcement agent, "Under 500, under 500." They knew that by staying below that amount they could potentially avoid prosecution.

Sending smaller marijuana loads has become more common every year since 2005, figures from the Arizona High Intensity Drug Trafficking Area, or HIDTA, show. Of the record 1.6 million pounds seized in Arizona in 2009, 68 percent came from seizures of 20 to 499 pounds - up from 48 percent in fiscal year 2005.

But some doubt that is due to the old threshold. Because of the growing legion of law enforcement on the border, many drug smugglers chose to send many small loads rather than fewer large ones to avoid big losses, said Tom Hayden, program coordinator for the Arizona HIDTA.

"Can only do so much"

The additional help from the Department of Justice allowed the U.S. Attorney's Office in Tucson to eliminate a threshold it never wanted in January 2009.

"I don't support the threshold but I understand why you would need to do one," said Burke. "At the end of the day, your prosecutors can only do so much."

In spring 2008, the office received funds to hire 21 additional prosecutors under the Justice Department initiative against border-related crime. The department also has filled positions that were vacant due to budgetary constraints, said Shelley Clemens, who heads the U.S. Attorney's Office in Tucson.

The Tucson office has 58 attorneys in the criminal division with six more scheduled to come aboard. That's up from 34 in 2007.

Southern Arizona county attorneys said they started seeing a significant decrease in cases referred by federal authorities in late 2009 or early 2010.

The Pima County Attorney's Office has prosecuted only three defendants from federally referred drug cases in 2010, down from 245 in 2009 and 174 in 2008, LaWall said. During 2007-2008, the cases were using up the time of the equivalent of two prosecutors, she said.

In Santa Cruz County, Silva said he can't remember when his office received a federally declined case this year. That's a drastic change from 2006-2008, when his office was handling 50-60 federally referred cases a year. The office would take about 90 percent of the referred cases but had to pass on the others because of a lack of staffing, he said.

In Cochise County, Rheinheimer' office has received 12 cases this year from the feds, compared with 35 to 40 last year.

His attorneys prosecuted nine of this year's cases and he estimates they prosecuted a similar percentage in past years. Cochise County used to prosecute all federally referred cases that it determined it could likely get a conviction on until 2003, when the county determined the costs to the criminal justice system were too high.

Burke, the new U.S. attorney for Arizona, calls the current situation a "moment of stability."

He hopes his office will be able to continue to take on smaller drug cases, but warns that more federal agents along the border making seizures or a loss of prosecutors could trigger another threshold.

County attorneys say they hope that never happens.

"When we have this war on drugs," Santa Cruz County Attorney Silva said, "we should either go all out or not at all."

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New binational agreements increase consequences for drug runners

Under a new agreement between the U.S. and Mexican governments, some suspected drug smugglers who used to go free can now be charged in Mexican courts.

Mexicans caught trying to sneak drugs through the Nogales ports of entry often avoid prosecution by claiming it's not their car and that they didn't know about the drugs. That makes it difficult to prosecute the case under U.S. law, so the U.S. Attorney's Office routinely declined the cases, letting the suspects go free, said Shelley Clemens, who heads the U.S. Attorney's Office in Tucson.

"We have to have a reasonable likelihood of conviction," Clemens said. "Right there, they have a built-in defense."

Now, under the test program, any marijuana-smuggling case from the Nogales ports of entry that her office declines is being referred to Mexican prosecutors.

Since the agreement's inception in October 2009, there have been 24 cases referred to Mexico, and two people have been convicted. In March, a federal judge in Sonora gave 10-year prison sentences to two men caught with less than 40 pounds of marijuana.

The "Controlled Substances Project" is a game-changer, said Arizona's U.S. Attorney Dennis Burke.

People who used to be tempted by the offer of quick money to simply drive a car loaded with drugs across the border may now think twice, Burke said.

"When word gets out - which it will; word in this area passes very quickly - that guy's going to go, 'Wait a minute, I don't want to be a drug courier,' " Burke said.

The program is being tested now in Nogales but could be expanded at other border ports of entry.

Cochise County has a similar agreement with Mexican authorities, said Cochise County Attorney Ed Rheinheimer. So far, the county has referred about 20 cases, he said.

Contact reporter Brady McCombs at 573-4213 or bmccombs@azstarnet.com.