Marijuana smuggling may be illegal, but so, apparently, is interfering with the smugglers' commerce in the drug.
That's the thinking behind two charges in the indictment unsealed Monday against those accused of killing U.S. Border Patrol Agent Brian Terry. Counts 1 and 2 of the indictment are simple: They accuse five of the six defendants of first-degree murder and second-degree murder.
But Counts 3 and 4 accuse all six defendants of conspiring and attempting to interfere with commerce through robbery. And what is the commerce they allegedly interfered with? Both counts say "the defendants unlawfully conspired to interfere with the movement of drugs."
So, they're being accused of illegally interfering with the illegal drug trade.
"That's a novel interpretation to me," said Kurt Altman, a Phoenix criminal-defense attorney who was a federal prosecutor for eight years.
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Heather Williams, a longtime assistant federal public defender in Tucson, said she'd never heard of that use of the law.
To understand how it can be a crime to interfere with smuggling you first need to grasp the Hobbs Act. This federal law, enacted in 1946 to fight labor-union racketeering, prohibits robbery or extortion affecting interstate commerce.
Often, though, federal prosecutors use it as a means to take over what would normally be a local criminal case. So, for example, when Mark Sands burned down luxury homes under construction in the Phoenix area in 2001, he was charged in federal court with extortion affecting interstate commerce.
It isn't the Hobbs Act specifically but, rather, a congressional finding on the Hobbs Act that gives the government permission to prosecute people for interfering in the drug trade through robbery or extortion, said Assistant U.S. Attorney Todd Robinson, who is prosecuting Terry's suspected killers.
That finding states, "A major portion of the traffic in controlled substances flows through interstate and foreign commerce."
Another motivation for using the law may be to include defendant Rito Osorio-Arellanes as a co-conspirator. Prosecutors say Osorio-Arellanes crossed the border with the five other defendants in early December 2010, all of them intending to rip off marijuana loads from smugglers.
But Osorio-Arellanes was arrested days before the encounter with the Border Patrol in which Terry was killed. He's charged only with Count 3, conspiring to interfere with commerce by robbery.
It turns out this isn't the first time prosecutors in Southern Arizona have used this novel approach. In the 1970s, federal prosecutors accused two Cochise County brothers who had kidnapped and robbed illegal immigrants, of violating the Hobbs Act. In that case, the illegal immigrants themselves constituted the commerce, and one of the brothers was convicted.
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• Jesus Rosario Favela-Astorga, 31.
• Ivan Soto-Barraza, 34.
• Heraclio Osorio-Arellanes, brother of fellow suspects Rito and Manuel Osorio-Arellanes.
• Lionel Portillo-Meza, whose age is estimated from mid-20s to early 30s.
On Monday, authorities released photos of three of the four wanted men.
Where to call
Federal officials asked Monday that anyone with information on the whereabouts of the fugitives suspected of killing Border Patrol Agent Brian Terry contact:
• The FBI's Phoenix office at 623-466-1999, or their local FBI office, or the nearest U.S. consulate or embassy.
Contact reporter Tim Steller at 807-8427 or at firstname.lastname@example.org