Plea deal in works for accused smuggler

A Mexican man accused of trying to smuggle six undocumented workers into Immokalee for jobs soon won’t face that charge because federal agents acted illegally, his defense lawyer said.

Gustavo Ramirez Cruz, 30, is charged with transporting illegal aliens after U.S. Border Patrol agents stopped his van Jan. 19 on Interstate 75 in northern Lee County. According to federal court records, agents spotted him at 8:40 p.m. near mile marker 149, headed south.

He wasn’t speeding, but looked nervous as he drove past where they were parked along the highway. He was driving a van with Tennessee plates and didn’t look over at the Border Patrol squad, agents said in an affidavit filed in this case. That’s why they had probable cause to stop him, they said.

And that’s when the agents broke the law, said Ramirez Cruz’s defense attorney, Assistant Federal Public Defender Russ Rosenthal.

“He was driving a car with an out-of-state tag. In January. How unusual,” Rosenthal said Wednesday.

But instead of following through with a hearing on whether the traffic stop was conducted illegally — resulting in evidence in the case being tossed out of court — Rosenthal and prosecutors are hammering out a plea deal.

He faces a new charge of illegal entry into the U.S., a misdemeanor instead of a felony. That charge carries a maximum penalty of six months in jail.

Chief Assistant U.S. Attorney Doug Molloy declined comment on whether he believed the stop was conducted illegally.

In a written motion opposing the evidence suppression request, Molloy said the agent “believed he had enough articulable facts to reasonably suspect that the vehicle contained aliens illegally within the United States and initiated a traffic stop.”

Molloy declined further comment, saying he could not discuss the case until a plea agreement is reached.

U.S. Magistrate Judge Sheri Polster Chappell set Ramirez Cruz’s plea hearing for 2 p.m. Friday in U.S. District Court in Fort Myers.

Rosenthal said a case could be made that the stop was a product of racial profiling.

Border Patrol agents said Ramirez Cruz was gripping the wheel with outstretched and locked arms as if nervous and didn’t look at them as other drivers do as they pulled alongside him. Agents stopped him after they said the rear of the 1997 Chevrolet Astro van bounced more than normal, as if heavily laden. Border Patrol agents said this was typical of vehicles weighted down by human cargo being smuggled across the country, court records show.

After pulling him over, the Border Patrol found six male passengers.

But agents said they saw this at 8:40 p.m. However, the sun set at 6 p.m., Alex Sosnowski, an AccuWeather senior forensic meteorologist, said.

“It was close to the last quarter (of the moon), so it wasn’t providing sufficient illumination,” Sosnowski said.

The moon didn’t rise until about 10:40 p.m., he added.

But if the stop was illegal, even evidence of Cruz’s immigration status and presence here may not be allowed in court.

“There were serious questions as to the validity of the stop, and it certainly had earmarks of an impermissible stop. However, he is in the country illegally,” Rosenthal said.

Cruz has been held in the Hendry County jail for almost five months. If Cruz won the argument to suppress evidence collected as a result of the stop, he would remain jailed for another month waiting for U.S. District Judge John E. Steele — the only district judge in Fort Myers — to rule and order Cruz’s release, Rosenthal explained.

“This was really just the quickest way to finish him in the court system and proceed to immigration (deportation),” he added.