The Ajo Mountain range on the eastern edge of Organ Pipe National Monument, just north of Lukeville, Ariz. on April 6, 2016.

An appeals court panel has upheld the drug-smuggling conviction of a man apprehended near Tucson, despite the fact that he did not have any drugs with him at the time of his arrest.

A three-judge panel of the 9th Circuit Court of Appeals on Jan. 31 upheld the conviction of Abelardo Niebla on a drug-trafficking conspiracy charge. Niebla was arrested in November 2014 on a mountainside near Ajo and accused of guiding drug smugglers in the valley below, court records show.

Law enforcement officials in Southern Arizona have long complained that scouts play a critical role in drug smuggling, but are difficult to prosecute. Niebla’s March 2015 conviction in U.S. District Court in Tucson opened the door for prosecuting scouts, a Border Patrol spokesman told the Star. Since then, 72 scouts have been convicted of conspiracy charges, according to the Border Patrol.

When a Border Patrol agent arrested Niebla and an accomplice on the peak of Pozo Redondo Mountain, the agent found binoculars, radios, cellphones and solar panels. The agent believed the items indicated the two men were scouts for drug smugglers. Niebla later told an agent he was watching Border Patrol activity and reporting back to a drug-trafficking cartel.

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Niebla pleaded guilty to illegal-reentry but did not plead guilty to the conspiracy charge. After a bench trial, he was convicted of conspiracy and sentenced to nine months in prison. Judge Raner C. Collins based his decision on Niebla’s statements, the items found in his possession and the fact that he had been arrested three years prior with similar items.

Niebla appealed his 2015 conviction on the grounds that prosecutors did not have sufficient evidence that a crime actually happened. He also argued that the court could not use his statements because he felt threatened by the agent when he gave them.

The appeals court judges reviewed a recording of the interrogation and ruled the agent did not threaten Niebla. The judges also said his case satisfied the law based on the fact that a rational person would conclude Niebla knowingly and unlawfully agreed to act as a scout.

Nate Airulla is a journalism student at the University of Arizona and an apprentice at the Star. Contact him at