No Crime in Escorting an Alien From Fast Food

PASADENA, Calif. (CN) - A convicted immigrant smuggler did not violate his probation by escorting an illegal immigrant from a Jack in the Box to a van, the 9th Circuit ruled Friday.

U.S. citizen Jorge Thum was sentenced six years ago to 33 months in prison for smuggling undocumented aliens into the country. In November 2012, he was arrested at the San Yisdro border crossing south of San Diego for allegedly escorting Aldo Varguez-Rodriguez from the fast-food restaurant to a van bound for Los Angeles.

After his arrest, Thum told federal border agents that another smuggler had instructed him to meet Varguez-Rodriguez and take him to the vehicle, the 9th Circuit's 13-page ruling states.

Thum was sentenced to time served, and a judge revoked his supervised release for the crime of encouraging or inducing an illegal alien to reside in the United States.

On appeal, Thum argued that the evidence was too flimsy to support the U.S. government's claims.

The appeals court in Pasadena agreed.

Federal prosecutors "proffered no evidence showing that Thum did anything to persuade, or even assist, an illegal alien to reside here," Judge Milan Smith wrote for the panel. "Rather, the evidence viewed in the light most favorable to the government merely shows that Thum attempted to help an illegal alien travel within the United States."

Smith added that if "merely facilitating the transportation of an illegal alien within this country sufficed to show 'encouragement,'" that would undermine another federal statute that addresses transportation of illegal immigrants into the country.

Prosecutors did not make clear that Thum aided and abetted the individual who had asked him to escort Varguez-Rodriguez, the court found.

On the "scant record," there was not enough evidence to show the man, identified as Chaplain, had encouraged Varguez-Rodriguez to stay in the country illegally, according to the ruling.

"Accordingly, there was insufficient evidence to prove that Thum aided and abetted Chapalin in so doing," Smith wrote.

The court vacated the judgment revoking Thum's supervised release and remanded with an instruction to dismiss the petition.

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