Thursday, December 11, 2014

AZMEX I3 11-12-14

AZMEX I3 11 DEC 2014

Note: Despite the wording of the headline, the victim and scum of the earth "coyote" were in the U.S. illegally.

Migrant sex assault case heading to trial
Mancinas Flores
Jose Ramon Mancinas Flores listens during a hearing Monday at Santa Cruz County Superior Court to dismiss the charges against him. He is accused of two counts of sexual conduct with a minor under the age of 15. The charges stem from alleged assaults during a nine-day illegal border-crossing attempt in December 2013.

Posted: Wednesday, December 10, 2014 3:05 pm | Updated: 3:07 pm, Wed Dec 10, 2014.
By Curt Prendergast
Nogales International

A Mexican man accused of raping a 14-year-old girl during an illegal border-crossing attempt is headed to trial after a Superior Court judge on Monday denied a defense attorney's motion to dismiss the charges.

If convicted at the four-day trial scheduled to start Jan. 27, Jose Ramon Mancinas Flores, 23, faces between 26 and 54 years in prison on two counts of sexual conduct with a minor under the age of 15. The charges stem from an incident in December 2013 in which the girl accused Mancinas of the assaults after Border Patrol agents arrested their nine-member migrant group west of Nogales.

During a Monday hearing at Superior Court, Judge Thomas Fink rejected a motion by defense lawyer James Miller to dismiss the charges after Miller raised the question of whether the alleged assaults occurred south of the border, and therefore outside the court's jurisdiction.

"He has no defense. It's clear he did have sex with a minor. DNA results show that it was him," Miller said. "The question becomes: Where did it happen?"

Border Patrol agents arrested the migrant group on Dec. 17, 2013 near Arivaca Road. After the alleged victim told agents Mancinas sexually assaulted her, Mancinas was turned over to the County Sheriff's Office and has remained at the county jail. The other members of the group were deported.

The witnesses gave videotaped statements, but were not available for cross-examination before they were deported, Miller said. In addition, some of the group members spoke indigenous languages and appeared to be "scared of the federal investigators."

"I would've liked to have had a chance to talk with them," he said, adding he might have seemed "less threatening" to the witnesses.
Miller acknowledged Mancinas told authorities he had sex with the girl while in the United States. However, Mancinas told investigators "what he thought they wanted to hear," Miller said. Mancinas later told Miller he believes the incidents occurred in Mexico.

In his statement to authorities, Mancinas said he had sex with the victim for the first time on Dec. 14, five days after crossing the border, said Deputy County Attorney Liliana Ortega. He then said the only time he had sex with the girl was on Dec. 15 and 16.

Not plausible
Fink noted the witnesses' statements "generally agreed" that the cross-border trek took about nine days and both the victim and the defendant said the alleged assaults occurred on the last few days of the trek.
"What plausible evidence can you point to that shows that some witness or witnesses would have testimony that would contradict that?" Fink asked.

The testimony of the witnesses may not contradict the victim's statement, but in their interviews they were not asked about the specific days when they saw the assaults, Miller said.
"They were just asked what they had observed during that period of time," he said.

If the witnesses' testimony could create a reasonable doubt on just one of the charges, it would shave at least 13 years – the minimum sentence for each of the charges – from Mancinas' potential prison term, Miller said. "It would be huge."

In her argument, Ortega cast doubt on Miller's claim that he was not able to develop a defense.
"I think that goes more towards speculation that something favorable might come up," she said. "Certainly, the standard here is not speculation."

"The issue is not whether the witnesses could have or might have provided something favorable to the defense," she said. "The showing has to be made that it's material to the defense or that it's favorable to the defense."

In his ruling, Fink said Miller "has not made a plausible showing that their testimony would have been favorable to the defense."

Instead, the witnesses "generally support" the victim's statement, which is also consistent with the statement made by the defendant, who is the most likely to know when the group crossed into the United States, Fink said.

On Oct. 13, Fink rejected a plea agreement between Mancinas and the County Attorney's Office that would have put Mancinas in prison for between five and 10 years. Fink said the 10-year cap was "unduly low and restricts the court's discretion."

Ortega summarized the statements of the seven witnesses, using their first names and in some cases their ages.

A woman named Yolanda said the cross-border trek began on Dec. 9 and lasted nine days, Ortega said. The group crossed through mountains on the fourth day, which left them with five days of walking in the United States. Yolanda reported the assaults started three nights before the arrest on Dec. 17.

A man named Abelino reported the group walked for eight days, including five days of walking in Mexico before they crossed the border. "He noticed a difference in her (the victim) after the third day," Ortega quoted Abelino as saying.

Abelino did not report seeing the assaults, nor did any other member of the group, Ortega said. However, a man named Jesus reported hearing an encounter between the victim and Mancinas in the days before the Dec. 17 arrest.

"He said that he heard the day before and the day before that, he heard what sounded like the defendant taking the clothes off of the victim and the victim saying 'No,'" Ortega said.

Jesus said he was sure the group crossed the border on Dec. 13, Ortega said.
Elias, 17, said the trek lasted nine days, but he did not report seeing or knowing anything about the alleged assaults. He also said "he had no reason to fear the defendant," Ortega said.

Cesar, 16, reported the trek lasted eight days. Like Elias, he said he did not see or know anything about the alleged assaults, Ortega said. Rosa, 17, provided little information.
"There's nothing in any of their statements that would show they have anything favorable to the defense as far as a jurisdictional issue," Ortega said, noting Arivaca Road is located near the northern boundary of Santa Cruz County.

In his argument, Miller expressed his frustration that the federal government deported the witnesses.
"I do not understand why the federal government, in state cases, deports these witnesses. They just deport everybody," Miller said.

By contrast, in federal cases, "they don't just deport them. They give all the attorneys a chance to interview all these witnesses," he said.
Fink asked Ortega to "flesh out the events so we have a record" showing when the witnesses were deported, but Ortega said she did not know what federal agencies did prior to referring the case to the County Attorney's Office.

During the hearing, both Fink and Ortega said a "better practice" would to hold the witnesses for the prosecuting agency.

"Now, we are making those inquiries," Ortega said.
"We have started these discussions with federal agencies," she said, adding on at least one occasion the agencies have been willing to hold witnesses.


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