January 17, 2024 721 PM
CULBERSON COUNTY — On the afternoon of December 24, 2020, the United States Border Patrol station in Van Horn received a phone call from a “concerned citizen” about a group of people loading large rectangular bundles into a car at a rest stop along I-10. Law enforcement flagged the vehicle and the driver was pulled over by DPS troopers about 20 miles down the road.
As the troopers would later testify in court, they first saw a female passenger with a large square bundle on her lap and a young child sitting on the center console. They discovered four other bundles shoved into the backseat and hatchback area — and were surprised to also find two men, contorted to fit in the cramped leftover space.
The two men in the backseat — Mexican nationals Martin Moncada de la Cruz and Victor Manuel Campos Ayala — would go on to be charged with a very serious federal crime: possession with intent to distribute over 238 pounds of marijuana. In March 2021, a jury found them guilty and each were sentenced to 60 months imprisonment with five years of supervised release.
Then, in June 2021, counsel for the defendants filed an appeal, which was argued before the Fifth Circuit Court of Appeals in October 2022. Two judges on a three-judge panel ruled in favor of vacating the defendants’ sentence — but that wasn’t the end of the story.
The court did something unusual. Without prompting from either party — sua sponte, in legalese — the court called for a do-over. Next Wednesday, the case will be heard before all 17 judges of the Fifth Circuit in something called an en banc review.
Alpine attorney Shane O’Neal — who was tapped to represent Campos in the appeals process — said that en banc cases set precedent, impacting future lawyers’ understanding of the issues at play. “It’s fairly important and very, very rare,” he said.
The 17 judges will revisit the case’s key concerns, including a question that has dogged this court before: if you touch something, does that mean you possess it?
“I just helped”
On Christmas Eve in 2020, Campos and Moncada were just two hours from friends and family when their American dream unraveled in a matter of minutes on the shoulder of I-10.
Two days before, they crossed the river at Ojinaga with Karina Castro-Hernandez and her young daughter and spent the night together under a bridge. The four were strangers: Campos and Moncada happened to be from the same town but they had all made it to the border from interior Mexico without a guide.
The crew hitched a ride from a young man in a gray Nissan who promised to take them all the way to Odessa. Everything seemed to be going smoothly until he dropped them off at a highway rest outside of Van Horn and told them to wait.
Around a half an hour later, he returned — but this time, the car was stuffed with large burlap bundles.
Castro-Hernandez sat in the front seat with a large bundle on her lap and placed her daughter on the center console. Moncada and Campos wedged themselves as best they could in the back.
DPS pulled them over less than a half an hour later; Border Patrol followed close behind.
State troopers put the driver — a 17-year-old who carried no identification except a high school ID — in handcuffs while they searched the vehicle. Border Patrol Agent Eric Ramos helped the mother and daughter out of the vehicle, offering some words of comfort and promising the young girl snacks when they arrived back at the station.
At trial, Ramos testified that he also had a brief conversation with the two men while helping them out of the confined space and into a transport vehicle. He asked them if they knew what they were sitting on. They indicated that they did.
“Why did you help with the drugs?” Ramos asked.
“I didn’t,” Campos responded.
Ramos doubled down. “Why did you cross the drugs?”
“I didn’t, I just helped.”
A lot of ink would eventually be spilled over that phrase — and a lot of discussion in court, including testimony by a Spanish-language translation expert witness. The prosecution leaned on the choice of the word “helped” to substantiate the “intent to distribute” part of the felony charge looming over the two men.
Campos’ attorney at the time, Stephanie Milliron, moved to suppress her client’s statements because she felt that the prosecution was focusing on a phrase used in casual — though heated — conversation, not in a formal confession.
She argued that her client had been questioned without being properly informed of his rights — commonly referred to as “Miranda rights,” after the Miranda v. Arizona Supreme Court Case that requires law enforcement to advise suspected criminals of their right to remain silent and their right to retain counsel before being detained and interrogated.
Throughout the appeals process, the question of whether or not Campos had been “detained” at the time he said that he had “helped” with the drugs was raised again and again.
O’Neal described the scene in an appellate reply: “When Campos was held in the car by troopers and agents for over 30 minutes, surrounded by uniformed, armed officers, watched each of his fellow passengers be formally arrested, and asked accusatory questions that went to key elements of the offense, he was in custody to the degree that Miranda rights should have been read to him before he gave partially, inculpatory answers.”
The prosecution disagreed, and pointed to the fact that both Campos and Moncada would go on to acknowledge they understood the nature and severity of their situation in an interview with Valerie Kettani and Javier Bustamante of the Drug Enforcement Administration.
Legally speaking, they argued that if Campos had wanted to walk away from the scene without answering any questions, he could have.
O’Neal stood his ground. “He would not have been able to simply leave on his own had he so desired,” he wrote. “He could not have driven away — he did not own or control the car. There was no practical way to leave the remote area on foot.”
“There’s only one reason you have that much dope”
In their interview with the DEA, agents Kettani and Bustamante asked the men if they understood why they were in trouble. “That’s just the way things are,” Campos reportedly said. “I was in possession of the marijuana.”
His counsel argued the opposite. “I would tell you that those marijuana bundles were possessing these defendants,” said Sandra Stewart, representing Moncada, at trial. “They couldn’t even get out without the law enforcement taking the bundles.”
Stewart and fellow attorney Milliron went so far as to call on their expert translator witness to explain the similarities between the words posición and posesión in Spanish, suggesting there might have been room for error in the agents’ interpretation of their clients’ confession — were they in possession of the marijuana, or in position?
From the very start, both parties seemed in agreement that the bundles of marijuana were not in the car when the migrants initially hitched a ride from Presidio with the kid in the silver Nissan. Kettani — who authored the original criminal complaint against the two men — said as much on the stand.
How the bundles got in the car is a mystery. Moncada indicated to Kettani that he had helped rearrange the bundles before getting back in the car at the rest stop, but didn’t seem to know where they originated.
The defense felt that there was a significant gap in the narrative that might have been filled if the government had not deported another witness — Castro, the young mother who had also ridden to Van Horn — before she could become a part of the legal proceedings.
The prosecution argued that whatever Castro had to say would have been essentially the same as what everyone else had said — the narratives offered by all parties in the case had consistent, overlapping details. When this claim became a cornerstone of the two mens’ appeals, they held firm.
They also explained that Castro would have had to be separated from her daughter if she had been detained for the purposes of being able to appear in court. It was the height of the pandemic, they reminded the court, and bed space was limited.
At trial, Stewart toed the line between sympathy for Castro’s situation and what she’d hoped to see for her client. She didn’t want to see a young mother and daughter locked up separately — but she also didn’t think it was fair that they weren’t. “Why are these people on trial and she’s not?”
The testimony of the driver, a young man identified as a U.S. citizen residing in Mexico, is also absent from the record. All the documents have to say is that he was “denied federal and state prosecution” because he was a minor at the time.
At trial, U.S. Attorney Eduardo Mendoza derided Campos and Moncada for taking advantage of the other vulnerable people in the silver Nissan, arguing that the holes in the story were entirely their fault. “These grown men are putting the blame on a 17-year-old boy,” he said in his closing arguments. “They want you to believe that they walked into the country with a female and their daughter and saw someone that they have never met and said, ‘Hey, can I have a ride?’”
He felt there was a lot left unsaid by all parties. “There is only one reason that you have that much dope,” he said.
The government’s case rested on the facts: that the two defendants were discovered by multiple law enforcement agencies to be lying on felonious amounts of drugs. “By moving the bundles around in the car and getting back in, they became participants, and not mere knowing spectators, in the driver’s enterprise to move marijuana and the aliens,” Assistant U.S. Attorney Richard Durbin wrote in a reply to the appellate court.
Phil Lynch, attorney for Moncada, fired back. “The facts in this case highlight Moncada’s lack of control … to get the ride they wanted, they had to accommodate the driver and the marijuana, contorting themselves to fit in the car and riding in absurd, uncomfortable positions,” he wrote.
“Here, the evidence is plentiful that Moncada’s purpose in riding in the car amidst the bundles was to get a ride to continue his journey into the United States,” Lynch continued. “Nothing suggests he had any interest or intent in the marijuana’s destination or owner.”
In a panel opinion, Chief Judge Priscilla Richman and Judge Jennifer Elrod wrote their opinion in favor of the defendants on the ground that the act of rearranging the bundles did not impute “ownership, dominion or control” over the cache.
In a caustic dissenting opinion, Andrew Oldham argued that that fact alone was enough to incriminate the defense. “With all due respect to my esteemed and learned colleagues, sitting on, hugging and otherwise being sandwiched between and under 283 pounds of marijuana constitutes possession of it,” he wrote.
In the vast majority of cases, the proceedings would have ended with a two-to-one favorable panel review, and the defendants would have been released after having waited out more than half their sentences in appeals purgatory. Instead, a majority of the circuit’s 17 judges voted to hear the case as a full bench — referred to as en banc.
An en banc decision for this case could have far-rippling legal repercussions. In 2021, the Fifth Circuit heard USA v. Smith, a case with a similar concern at its core. In 2019, a convicted felon in Midland confessed to having “touched” a friend’s gun; he was charged with unlawful possession of a firearm. The court ultimately ruled that the defendant having “touched” the firearm was insufficient grounds to convict — there had to be something more to show control over the weapon.
This Wednesday’s proceedings could test the court’s opinion in the Smith case, as en banc opinions tend to trump run-of-the-mill panel decisions.
Whatever the greater implications for case law might be, Lynch wrote to The Big Bend Sentinel that he was disappointed that the proceedings had dragged on for so long. “We are hopeful that, after reviewing the law on possession and its many cautions that possession be proved by actual control, not assumed or presumed from proximity, the en banc court will validate our position and Mr. Moncada, who has said from the first that he was merely a traveler who accepted a ride, will be freed.”
Richard Durbin, representing the U.S.A. in this case, declined to comment.