Crash Probe May Hinge on Prior Smuggling Case

After the deaths Saturday of seven suspected illegal immigrants as their speeding truck flipped into a gully, federal officials vowed an unstinting investigation to find and prosecute the smuggler they hold wholly responsible for the tragedy.

If the smuggler is ever found, the extent to which he can be held legally responsible may hinge on the outcome of a little-noticed smuggling case that goes to a federal judge in San Diego on Monday for sentencing.

The Temecula crash, coming just days after the now infamous beating of two suspected illegal immigrants in South El Monte after an 80-mile chase, is receiving national media coverage.

But last year when a speeding van packed with illegal immigrants crashed into a pickup truck on a two-lane road in rural eastern San Diego County, killing two immigrants and the pickup driver, the story was deemed worthy of only a few days of local media coverage.

The manslaughter conviction of the van driver, a suspected immigrant smuggler, got only workaday treatment in the media.

But what happens to Gilbert Baez-Luna, 27, when he is sentenced Monday morning in federal court on smuggling charges is not just routine.

In the long run, the case could have a greater impact on illegal immigration and the ability of the federal government to deter smuggling than will the Temecula incident or the case involving Riverside County sheriff’s deputies and their batons.

Baez-Luna has already been sentenced to eight years in state prison after being prosecuted by the district attorney. But federal prosecutors want an additional sentence of 25 years, based on an untested 1994 federal law that calls for increased sentences for smugglers of illegal immigrants involved in incidents where people are killed, injured or endangered.

Because smuggling is, by its nature, a risky and dangerous business for the immigrants, federal border “czar” Alan Bersin believes that the 1994 law could apply to many smuggling cases.

The Baez-Luna case, in some particulars, mirrors Saturday morning’s tragedy: a vehicle packed with illegal immigrants, and a smuggler driving on a dark, rural, two-lane road and then attempting to flee when spotted by the Border Patrol even though he was not being chased.

Bersin believes that a tough sentence in the Baez-Luna case could act as a deterrent to smuggling, a crime that has until recently received only minimal attention from federal prosecutors.

“The Luna case demonstrates what is a daily occurrence with smugglers: their reckless endangerment and violation of the civil rights of the immigrants,” said Bersin, the U.S. attorney for San Diego and Imperial counties. “It’s so common we’ve become inured to it. But no longer.”

Federal Judge Marilyn Huff has already signaled a reluctance to slap Baez-Luna with more years, possibly because such a sentence might be overturned by the U.S. 9th Circuit Court of Appeals, labeled by some legal scholars as one of the country’s most liberal courts.

For decades, the maximum penalty for smuggling was five years. One facet of the wide-ranging 1994 crime bill passed by Congress increased the penalty for immigrant smuggling: up to a maximum of 20 years if anyone is injured or “placed in jeopardy.” In cases of death, the maximum is the death penalty or life in prison.

According to court documents, Baez-Luna packed 35 illegal immigrants, ranging in age from 16 to 59, into the back of his 1978 Ford van just across the border from the Mexican city of Tecate, 30 miles southeast of San Diego, on the night of April 29, 1995.

As he drove along rural California 94 about 10:30 p.m., he saw a Border Patrol car. Baez-Luna sped up of 75 mph. The immigrants pleaded with him to slow down, but he cursed them and told them to shut up. One immigrant quoted Baez-Luna as saying:

“I know what I’m doing, if we win, we all win, if we lose, we all lose. It’s all or none of us.”

The van sped along the hilly, curving road. Near the hamlet of Jamul, the van crossed the center line and crashed head-on into a pickup truck driven by Richard Horton, 32.

Horton and two of the suspected illegal immigrants, Roberto Ocegueda Lopez, 38, and Antonio Silva Frias, 40, were killed, and 16 immigrants were injured. Baez-Luna pleaded guilty in both state and federal courts, and his attorney said he was remorseful.

The California Highway Patrol concluded that despite Baez-Luna’s assertion, the van was not being chased by the Border Patrol. Even as he lay in a hospital bed, Baez-Luna, 27, an ex-convict, insisted that he was not the driver and used one of his four aliases.

To prosecutors, Baez-Luna was the prototypal modern smuggler: quick to use aliases, willing to pack dangerous numbers of immigrants into small spaces and then risk their lives to avoid capture.

Baez-Luna is seen as a test case of the 1994 law, which could go to the U.S. Supreme Court to determine if it is constitutional to place a heavier penalty on immigrant smugglers than on other people convicted of similar crimes--in this case, three counts of manslaughter.

Also, the 1994 law is tougher than the U.S. Sentencing Commission guidelines, which are to be used by federal judges. U.S. Atty. Gen. Janet Reno has asked the commission to increase its guidelines for smuggling, but so far that has not occurred. Any appeal in the Baez-Luna case probably would include an assertion that the commission guidelines, not the 1994 law, should take precedence.

The state judge, in giving Baez-Luna the maximum sentence, agreed with the prosecutor that eight years was paltry punishment “for three dead bodies.”

Bersin hopes that Huff’s decision on the prosecutors’ request for a 25-year sentence will begin to change that: “We’ve got to begin to get sanctions that fit the crime,” Bersin said.