Swamped by Smuggling : Surge in Drug Seizures Forces Border Officials to Weigh Eased Guidelines on Prosecutions

Something about the 31-year-old woman driving across the border in pre-dawn darkness with two small children made the U.S. Customs inspector suspicious. She was making her way home to Los Angeles, she said.

But her explanation, that they were just a family returning early Sunday morning after a visit to Tijuana, was unconvincing. She was ordered to pull over at the San Ysidro port of entry.

Inspectors searched the trunk of the woman’s 1986 Mitsubishi and found 54 pounds of marijuana. She was arrested and her children--an 8-year-old boy and a 4-year-old girl--were taken to a county receiving home.

Hours earlier, a 69-year-old man, driving alone from Mexico in a Ford station wagon, had inched along behind a line of cars toward a customs inspection booth. Sitting patiently behind the wheel, the elderly man appeared nothing like a narcotics smuggler.

But a drug-sniffing dog led down the lanes of cars making their way to San Ysidro pulled excitedly at its handler’s leash when it reached the station wagon, alerting inspectors to a “hit.” Authorities found 47 pounds of marijuana hidden in the man’s car.

The two smuggling incidents during a recent weekend are hardly isolated cases. They symbolize a growing problem at San Ysidro and the other four ports of entry along the California-Mexico border, where marijuana smuggling has reached epidemic proportions, Customs spokeswoman Bobbie Cassidy said.

Marijuana seizures at the border have increased so dramatically that the upswing has forced San Diego-based federal law enforcement officials to rethink their policy on prosecuting smugglers.

Because of a lack of prosecutors, judges and funding, the U.S. attorney’s office can no longer prosecute all drug cases--including marijuana, cocaine, heroin and other narcotics--that originate at the border.

As a result, for the third time in recent years, the U.S. attorney’s office is considering changing its guidelines on marijuana smuggling, which amounts to a loose formula to aid prosecutors in deciding which cases to handle as felonies.

Under the proposed changes, it would be possible for a first-time smuggler to face only a misdemeanor charge if caught carrying up to 220 pounds of marijuana into California. If the amount is more than 220 pounds, the smuggler would probably be charged with a felony. Other factors, such as a criminal record, would be taken into consideration and the prosecutor would not be bound by the guidelines.

The proposal would more than double the amount of marijuana that smugglers can now get away with trying to sneak into the United States and still face the possibility of winding up with only a misdemeanor. Two years ago, federal authorities in San Diego decided that a smuggler carrying up to 100 pounds in their jurisdiction might be eligible to plead guilty to a misdemeanor. Before January, 1991, the threshold was 50 pounds.

Many customs drug agents and inspectors, who conduct the majority of border seizures, oppose the proposal but admit that the number of cases makes it impossible to treat all of them as felonies.

Although U.S. Atty. William Braniff refused to confirm the proposal’s existence, a brief, undated memo from his office seeks San Diego customs officials’ comments on the matter.

If customs officials and prosecutors agree that the threshold should be raised, the U.S. attorney’s office will have the authority to apply it to all marijuana cases in the San Diego federal sector, which stretches to the Arizona border.

“It needs to be reviewed. . . . It’s not as simple as to say: ‘Fine, we’ll raise the threshold.’ Where do you put the cap?” said Rudy Camacho, customs district director, when asked about the proposal. Last year, the amount of marijuana seized at the ports of entry more than doubled from 1991. In 1992, customs inspectors made 1,299 seizures, totaling 80,129 pounds of marijuana. In 1991, the totals were 673 seizures and 30,781 pounds.

According to figures provided by customs officials, 1993 looms as another record year. Between the opening of the fiscal year Oct. 1 and last Sunday, inspectors made 430 seizures totaling 29,009 pounds of marijuana, customs officials said.

The Border Patrol is also witnessing a rise in marijuana smuggling. Along expanses of the international boundary that lie beyond the ports of entry manned by U.S. Customs, agents seized 37,642 pounds of marijuana, an all-time record for the San Diego sector, Border Patrol spokesman Steve Kean said.

Under federal law, any illegal importation of drugs can be prosecuted as a felony--even when the amount is a single marijuana cigarette. But as a practical matter, prosecutors must decide which cases to go after, so the proposal would permit plea bargains if suspects agree to plead guilty to a misdemeanor, which carries a maximum one year in custody.

“The fact of the matter is that Braniff has limited resources; not enough prosecutors, not enough judges, not enough jails,” said Jeff Casey, customs deputy special agent in charge.

Federal officials in Washington declined to comment on the proposal, saying they view it as a local issue.

Other drug experts said they support the proposal to raise the threshold.

“We don’t live in a world of unlimited resources. The U.S. attorney has to decide how to best use the available resources,” said Mark Kleiman of Harvard’s Kennedy School of Government and an expert in drug enforcement policy.

Peter Reuter, a Rand analyst, said raising the threshold “makes sense” so prosecutors can go after cocaine smugglers. “All this talk about winning the war on drugs, and we’re really managing a social problem.”

U.S. District Judge Gordon Thompson Jr., who was unaware of the proposed threshold, said the shortage of federal judges has forced Braniff’s office to make some tough decisions.

“Officially, we’re one judge short in this district. We have seven active judges, but we really need three more. The circumstances make it tough and demanding for both the U.S. attorney and the judges,” Thompson said.

The judge and others said they hope that Congress and the Clinton Administration can agree on legislation to make more funding available. But few expect the government to be able to afford to appoint enough judges, prosecutors and drug agents at the border to handle the growing load of drug cases.

Now, smugglers caught with “small amounts” of marijuana--well below the 100-pound thres-hold--can be freed with a citation and ordered to appear before a federal magistrate, Casey said.

One drug agent expressed grudging admiration for the smugglers’ ingenuity.

“There are third-generation smugglers on the other side of the border who are extremely cunning,” he said. “Rather than bringing one tanker across with 10,000 pounds of pot, they hire 100 poor people to each bring 100 pounds of pot across. They get the same results.”