July 19, 2019

Colorado Court of Appeals: Prosecution Not Required to Prove that Defendant’s Passengers Were in U.S. Illegally but Only Had to Prove Defendant’s Intent

The Colorado Court of Appeals issued its opinion in People v. Fuentes-Espinoza on Thursday, January 17, 2013.

Human Smuggling—Federal Immigration Laws—Intent—Evidence—Prosecutorial Misconduct.

Defendant appealed the judgment of conviction entered against him after being found guilty of transporting seven passengers in violation of Colorado’s human smuggling statute, CRS § 18-13-128. The judgment was affirmed.

Defendant argued that Colorado’s human smuggling statute is preempted by federal law. However, the Court of Appeals would not consider the unpreserved constitutional attack on the statute in this case involving substantive preemption.

Defendant argued that Colorado’s human smuggling statute requires the prosecution to prove that the person to be transported violated federal immigration laws. Here, none of the alleged passengers was available to testify at trial, and the prosecution did not establish whether any of them was illegally present in the United States. However, the prosecution must prove only that the defendant had “the purpose of assisting another personto enter, remain in, or travel through the United States or the state of Colorado in violation of immigration laws.” Because the statute’s focus is on the defendant’s intent, the prosecution is not required to prove that the defendant’s passenger or intended passenger was illegally present in the United States or Colorado, in violation of immigration laws.

Defendant contended that the evidence was insufficient to support his convictions because it did not establish that he transported any of the persons named in the complaint. Defendant and the seven alleged passengers were taken into custody outside a gas station and convenience store. There was sufficient evidence that the seven persons named in the complaint were traveling together in defendant’s van, which supported defendant’s conviction.

Defendant also contended that the trial court erred by allowing the arresting officer to testify that, when the seventh alleged passenger approached, the officer “found out that he was a passenger.” There was no reasonable probability that defendant was prejudiced by the admission of the officer’s statement, because there was sufficient evidence to support defendant’s convictions as to the seventh passenger. Therefore, any error was harmless.

Defendant also contended that reversal was required because the prosecutor committed misconduct in closing argument by suggesting that defendant lied to police. Although the prosecutor used the word “lie” in his closing argument, he was characterizing defendant’s contradictory statements. Thus, any such error was harmless.

Summary and full case available here.