(CN) — Two men convicted of smuggling Cuban baseball players into the United States and pocketing portions of their contracts did not aid and abet illegal border crossings, their lawyers argued Tuesday before the 11th Circuit.
Trainer Julio Estrada and sports agent Bartolo Hernandez were convicted in 2017 of conspiracy charges for smuggling numerous ballplayers across the border and profiting off of them. The players include major leaguers Jose Abreu and Leonys Martin.
Estrada’s attorney, Howard Srebnick with Black Srebnick in Miami, argued during a telephone hearing Tuesday morning that the convictions be overturned because of a “flawed theory of prosecution.”
“At a minimum, a new trial is required because the district court declined to give the defense-requested jury instructions which would have required a specific finding, a specific factual finding by the jury that the aliens lacked prior official authorization,” he said.
Srebnick said the defendants themselves did not bring the players across the border.
“If I were to tell the court that I am going to bring my grandmother to the doctor this afternoon, and the court later found out that what I did was I gave my grandmother cab fare to take herself to the doctor, I think everyone would question my representation that I was bringing my grandmother to the doctor,” Srebnick said.
“What about the aiding and abetting theory?” asked U.S. Circuit Judge Robin Rosenbaum, a Barack Obama appointee. “If your clients are found, which they were I guess, found to have aided and abetted the entry of these aliens, the bringing of these aliens into the United States, why isn’t that sufficient under the aiding and abetting theory?”
“I must admit that if these defendants had been charged under the statute penalizing encouraging or inducing an alien to go to the United States, the government would have a much stronger case,” Srebnick said, adding that the law the prosecution invoked did not meet the level of proof to warrant a conviction.
Hernandez’s attorney, Jeff Marcus, argued that Martin, the baseball player who trained in Mexico for months before entering the United States, did not know who Hernandez was until after he had crossed the border.
“The theory was that he talked to another handler, somebody who was in the United States, who then spoke to those two gentlemen,” Marcus said. “You don’t even have direct communication, which is unusual. How do you even encourage or cause something to happen when you don’t have direct contact?”
Prosecutor Christopher Smith cited the testimony of Martin, who said “they needed to confirm with Bart Hernandez that he would be able to maintain that [Texas Rangers] contract if he crossed the border illegally, without a visa at that juncture.”
“I think the evidence is that they were more or less aiding each other,” Smith said. “They may not have been with each other at the second he entered the inspection station, but they were there contemporaneously.”
Hernandez was sentenced to three years in prison, while Estrada received a five-year sentence.
Rosenbaum was joined on the panel by U.S. Circuit Judges Jill Pryor, another Obama appointee, and Elizabeth Branch, appointed by President Donald Trump.
It is unclear when the judges will issue a ruling in the case.
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