Mexican Smugglers Can’t Upend Convictions

     (CN) – An immigration agent who gave expert testimony against migrant smugglers he had also investigated did not taint their convictions, the 9th Circuit ruled Monday.
     A federal jury in Tucson, Ariz., found Yuris Bonilla-Guizar guilty of hostage taking and harboring an alien, and Carlos Armando Calixtro-Bustamante guilty of conspiracy to commit hostage taking, hostage taking and harboring an alien. Both were sentenced to 15 years in prison.
     The prosecution alleged that the pair had agreed in 2009 to smuggle Julio Cesar Lopez-Trujillo and others into the United States from Mexico for $1,500 a head. When the group made it to some trailers outside of Tucson, however, the men suddenly demanded $2,300 and held Lopez-Trujillo at gunpoint while he called his wife to wire the extra money. Before the issue got worked out, Immigration and Customs Enforcement (ICE) agents busted in, arresting the smugglers and freeing the hostages.
     During the trial, veteran ICE agent Jeffrey Ellis testified for the government as an expert witness on the inner workings of migrant-smuggling gangs. Ellis also had initiated the investigation of Bonilla and Calixtro, worked on it for about four months and prepared the search warrant in the case.
     The defendants argued that the agent’s testimony had robbed them of their right to a fair trial, noting that Ellis had actually admitted to being on the government’s side during cross-examination. If not a new trial, the testimony should have at least inspired a “cautionary instruction” to the jury, they said.
     U.S. District Judge Frank Zapata sidelined the objections, and a three-judge appeals panel unanimously affirmed on Monday.
     While agreeing that “extra precautions are necessary when a case agent testifies as an expert and a fact witness,” the panel found that Ellis’ fact-based testimony had in no way affected the outcome of the trial.
     “None of this fact testimony from Agent Ellis established any elements of the crime or was material to the conviction,” wrote U.S. District Judge Algenon Marbley, who joined the appellate panel by designation from the U.S. District Court for the Southern District of Ohio. “Nor could the jury have been swayed to grant more weight to Ellis’s expert testimony here by the few facts he recited about the search warrant application. In light of the overwhelming evidence of guilt, we can say with at least a ‘fair assurance’ that any error did not affect the verdict and was therefore harmless.”
     The panel did however remand the case for resentencing. The lower court lacked enough evidence to increase the defendants’ sentences for allegedly pointing guns at their victim, the judges said, partly because the guns allegedly seized from the defendants were “accidentally destroyed while in the laboratory.”

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