Indicting Abrego Garcia
A new front in the legal battle between the US Government and Kilmar Abrego Garcia opened last week as the Justice Department indicted Garcia for conspiring to transport aliens.
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Justice in Brief
In the Eastern District of Michigan, two Chinese citizens were charged with illegally importing a biological pathogen, a fungus, into the United States that could be used to destroy crops as a form of agroterrorism.
In the District of Colorado, an Egyptian national was charged with a hate crime for firebombing a pro-Israel gathering using Molotov cocktails.
In the Central District of California, a man was charged with providing material support to another person who detonated an explosive at a fertility clinic. The man provided the alleged bomber with ammonium nitrate.
Updates…
In the Southern District of New York, the RICO case against Sean “Diddy” Combs continues as the government is still presenting its case-in-chief.
Pardon Attorney Ed Martin has opened an investigation into President Joe Biden’s potential use of an auto pen when signing pardons at the end of his presidency. Martin believes that others might have issued the pardons because President Biden was not competent to do so.
The Assistant US Attorney who oversaw all of the January 6 prosecutions has resigned from the DC US Attorney’s Office.
US v. Abrego Garcia
In March, while driving home from picking up his son, Kilmar Abrego Garcia was stopped by law enforcement. He believed it was a routine traffic stop. Instead, the stop was made by Immigration and Customs Enforcement agents. Garcia, a citizen of El Salvador, had come to the United States more than a decade prior without authorization. He had been arrested in 2019. At that time, Immigration officials sought Garcia’s removal. An immigration judge credited Garcia’s claim of harm should he return to El Salvador. This legalized Garcia’s residency in the United States. Despite this, during the March traffic stop, Immigration officials arrested Garcia and sent him to a prison in El Salvador. When this happened, Garcia became a key figure in the legal and political battle over immigration policy. Garcia became a potential example of the Trump Administration’s willingness to ignore court orders. Throughout the battle, the Justice Department asserted that Garcia was smuggling illegal aliens into the United States and was a MS-13 gang member. Now, the Government has indicted Garcia.
In the Middle District of Tennessee, a grand jury returned an indictment in May. The indictment remained under seal until the Government could arrange to bring Abrego Garcia back to the United States. This occurred on June 6. He faces two criminal charges: conspiracy to transport aliens and unlawful transportation of undocumented aliens. Both charges arise under 8 USC 1324.
Unlawfully transporting an undocumented alien is prohibited by 8 USC 1324(a)(1)(A)(ii). To convict Garcia of this charge, the Government will need to prove, beyond a reasonable doubt, that Garcia, or someone working with Garcia, knew or recklessly disregarded the fact that an alien had entered or remains in the United States in violation of law and moved the person within the United States by means of transportation in furtherance of the violation of law. The indictment alleges that this occurred on November 30, 2022. On that date, Garcia was stopped in Tennessee, in Interstate 40, driving a Chevy Suburban. In addition to Garcia, there were nine other people in the Suburban, none of whom had identification. Officers also observed that the Suburban had an after-market third row of seats installed in it. When asked where he was going, Garcia responded that he was taking the nine people from a construction site in St. Louis to Maryland. The officers did not observe any luggage or construction tools in the van. Ultimately, the state police allowed Garcia to continue on his journey without issuing any citations. According to the indictment, subsequent investigation determined that the van had not been near St. Louis in the 12 months proceeding the traffic stop and that the van had been in Houston, Texas, one week before the traffic stop.
To convict Garcia, the Government will need more evidence because the indictment leaves significant room for reasonable doubt. First, the government will have to prove the people in the Suburban were not lawfully in the United States. The indictment only alleges that the people in the car did not have documentation and were all Hispanic males. At best, this raises an inference that they were undocumented but is hardly proof beyond a reasonable doubt. It is certainly possible that they came to the United States unlawfully but an immigration judge granted them permission to remain. Even assuming they were in the United States unlawfully, the Government would have to prove Garcia knew this or recklessly disregarded the fact. Garcia’s apparently false statement about their journey’s origins provides some evidence that Garcia knew the passengers were unlawful. There could be other explanations for the false statements, assuming they are false. Finally, while there is no doubt that Garcia was transporting the people, he must do so to further their unlawful remaining in the United States. Proving this will require more substantial evidence about their journey. It will also require the same proof that Garcia knew those he was transporting were not lawfully in the United States.
The conspiracy charge requires the Government prove that Garcia and at least one other person agreed to transport someone who has entered or remained in the United States unlawfully. The government must also prove that one of the people who agreed committed at least one overt act to further their agreement. The indictment also alleges that the conspiracy did this for personal financial gain, an allegation that enhances the potential sentence. In this indictment, the Government identified six other co-conspirators, none of whom were indicted with Garcia. According to the indictment, Garcia and co-conspirator 1 met in 2016 and agreed to transport undocumented aliens. Other than the word of co-conspirator 1, there is no evidence of this agreement other than the co-conspirator’s word. However, proof of the agreement can be inferred through conduct. Co-conspirator 6 was located outside the United States and recruited people for border crossings. This included, according to the indictment, MS-13 gang members. According to co-conspirator 1, he and Garcia would drive to Houston and collect the undocumented aliens soon after they crossed the border. Eventually, co-conspirator 1 introduced Garcia to co-conspirator 2 and the trio began working together. In addition to people, the indictment alleges the trio also shipped drugs and weapons. Each of these things would also constitute overt acts in furtherance of the conspiracy.
Based on what is alleged in the indictment, the conspiracy charge is based on two things. The first is the November 2022 traffic stop. The problems associated with the substantive charge of transporting illegal aliens also apply to the conspiracy. The second is the immunized testimony of co-conspirator 1. This renders the testimony suspect. A good case will feature corroborating evidence. The indictment implies corroborating evidence from two sources. The first are financial records. Co-conspirators 4 and 5 allegedly handled thousands of dollars in transactions, making efforts to conceal the source of the proceeds. The second is license plate reader data. These are cameras located around the country that use optical character recognition to record license plate information for the cars that pass. This can be used to identify places a vehicle has traveled. The Government used this information as evidence Garcia had not driven the Suburban near St. Louis in the weeks prior to his traffic stop in Tennessee. Ultimately, based on the evidence provided thus far, both charges will require more evidence before a jury will be convinced.
The case against Kilmar Abrego Garcia is atypical of federal criminal cases as it leaves several looming questions. It also does not appear that Garcia is a significant human smuggler. This raises the question why the Government decided to pursue these charges. Given the Department’s priority on immigration matters, pursuing this case is not surprising. It also appears that, on the surface, the Government has a legally sufficient case even if not convincing. In a typical case, one where the Government invested significant investigatory resources, they would have conducted more surveillance and tracked Garcia as he transported people from Houston to Maryland. This would have led to substantial evidence of Garcia’s involvement. Instead, the Government seems to have hastily decided to pursue Garcia’s case. Most likely due this was due to pressure from the courts to bring Garcia back to the United States after the Government admitted he should not have been deported in the first place. Further evidence of this appeared last week when the Assistant US Attorney for the Middle District of Tennessee, who led the office’s Criminal Division, abruptly resigned, apparently due to concerns over the case.
As I wrote about two weeks ago, the Bondi Justice Department is taking a different approach to its investigatory and charging decisions. This approach is not as thorough as normal and the objective is not always to secure a conviction. How true this is will become clear as the Garcia case progresses. He is scheduled to appear in court for his arraignment this week.
I hope you enjoyed this issue and that it made you stop and think. I would love to hear any comments, questions, concerns, or criticisms that you have. Leave a comment or send a message! Also, if you enjoyed this or if it challenged your thinking, please subscribe and share with others!