TUCSON – On the day Derrick McCoy was scheduled for arraignment on federal felony charges, which could have landed him in prison for up to 10 years, he heard the news that his ordeal is over, thirty two days from the start.
“Your charges are being dismissed,” Henry L. Jacobs, his court-appointed attorney, told McCoy, 20, shortly after he entered the courtroom in U.S. District Court at about 10:15 a.m. Wednesday.“I’m very happy that the justice system has revealed itself and we have seen that it was brought to light about Border Patrol,” said McCoy, a resident of the rural Portal area who was arrested about 8:30 a.m. Nov. 11 after he tried to transport four illegal aliens from his neighbor’s property in order to turn them over to Border Patrol.
The big break in the case came after Jacobs, who previously urged McCoy to plead guilty based on written reports by Border Patrol agents, interviewed the four illegal aliens on Friday. After interviewing all the men separately and at length, he discovered that their stories matched McCoy’s, but clashed sharply with the Border Patrol reports.
When Jacobs presented his findings to the U.S. Attorney’s Office shortly before today’s hearing, the decision was reached to file a motion to dismiss a grand jury indictment, which stated that McCoy should be formally charged with the felony.
U.S. Magistrate Leslie A. Bowman granted the government’s motion to dismiss the indictment, after it was presented to the court by Assistant U.S. Attorney Kevin Hakala.
After he was arrested Nov. 11 near his rural home, interviewed by Border Patrol agents, then held in custody for five days in inhumane conditions including solitary confinement, McCoy was accused of lying to Border Patrol about having illegal aliens in his vehicle, as well as trying to obtain $200 from them.
Derrick McCoy talks to reporter Huey Freeman after charges of felony illegal alien transportation were dismissed.
McCoy moved to the rural area near the tiny town of Apache in Cochise County from rural Aztec, NM, in July. He said he had no prior contact with illegal border crossers. He has maintained that he was just transporting the four men, who were dressed in camouflage outfits, in order to protect his neighbors. He agreed to take them to Tucson, but he only intended to take them to the nearest Border Patrol agent. He did not even know the way to Tucson. His 1997 Mercury Mountaineer was hitched to a work trailer without license plates that he normally would not drive on main highways.
The testimony of several neighbors backed his story, including a woman who felt threatened by the presence of the border crossers near her property and a neighbor who asked McCoy to go to the scene, after he had called Border Patrol.
McCoy said his lawyer told him Friday that the illegals backed his story, that he that he had not tried to evade Border Patrol nor considered an offer of $200 from them. They said they never offered him $200, which was a major part of the government’s case.
The illegal aliens told Jacobs that a young man who was part of their group told the others “to get down” in the vehicle in Spanish. They said McCoy did not tell them to get down. McCoy does not understand Spanish.
Jacobs also discovered that McCoy did not have any of the aliens’ money in his possession, showing a lack of evidence that he was driving them for money.
McCoy said he did not believe illegals carried money with them, that they were coming to America because they needed money. A hard-working handyman who is widely respected in his ranching community, with plenty of paying customers, McCoy never viewed illegal aliens as any kind of financial opportunity.
McCoy denied that he gave that direction to “get down” to the illegal aliens. It would have been a ridiculous thing to say, considering there were many Border Patrol vehicles arriving on the scene at that time, in broad daylight, and McCoy stopped when he saw them. He was trying to unload his passengers as soon as possible. His girlfriend was en route from Silver City, New Mexico, and he wanted to deliver the illegal aliens to Border Patrol as soon as possible, so he could get on with his plans for the day.
The Border Patrol’s Criminal Complaint says, “They got into the back seat of his vehicle, where the driver stated ‘get down’ when they passed Border Patrol.”
That document, the cornerstone of the foundation of McCoy’s imprisonment and indictment, also accused him of telling an unnamed Border Patrol agent that he “had not seen or spoken to anyone but that there were four individuals on the road up ahead.”
McCoy insists that he immediately told the first agent with whom he spoke that he had four illegal aliens in his vehicle. Why would he say anything else? There were between six and 15 Border Patrol vehicles at the scene at that time. Would an intelligent, sober man try to hide four grown men from a sizeable group of federal agents, while they were in the back of a medium-sized SUV with the seats folded down, loaded with tools? Only a comedy writer could come up with that scenario.
On Friday, Jacobs emailed McCoy, telling him there were discrepancies between the Border Patrol agents’ reports and the testimony of the illegal aliens, which could possibly lead to dismissal.
His email said “it went very well for your position, exposing important holes in the agents’ reports.” That was the first good news McCoy heard in his case. Shortly after his arrest, he was told that he would most likely spend three to five years in prison.
Jacobs said this was a very uncommon case.
“These facts are crazy; these facts are nothing typical,” he said. “I don’t really believe this boy did anything wrong.”
McCoy’s lawyer said that in most cases of this nature the defendants agree to plead guilty in exchange for a lesser sentence and the illegal aliens are not interviewed to tell their side of the story.
“The government intentionally puts pressure on defendants to take the plea immediately,” Jacobs said.
The plea agreement offered to McCoy, which he was pressured to accept, has a notation of “Fast Track” right beneath the phrase “Plea Agreement.” He was advised on Thursday, one day before the illegal aliens were interviewed, that he should accept the plea agreement that day.
If he accepted it, he would have been convicted of a federal felony, with a minimum sentence of three years’ probation, and possibly some prison time. With a threat of 10 years in prison if convicted at trial, McCoy seriously considered that option.
Jacobs said the illegal aliens – a family unit of a senior man, his son and two nephews — had been through a rough journey since they left the southern Mexican state of Oaxaca. Some of them had previously lived in Georgia, saved a considerable amount of money from hard labor, then returned to Mexico.
After bad guys stole from them as they struggled to earn a living in their native land, they decided to undertake the dangerous journey to America. They ran out of water and food stateside, and wondered if the older man would survive. The coyote (paid guide) who was taking them across the desert abandoned them to an uncertain fate. By the time they entered McCoy’s neighborhood they were in desperate shape.
They told Jacobs that McCoy gave them water and they wanted to enter his vehicle so he would drive them somewhere. They didn’t blame him for drawing his pistol when the older man advanced toward him. They said they did not have time to agree on a financial offer to make to McCoy in the short time they were in his vehicle. He had driven them about one half mile when the Border Patrol vehicles arrived.
“The illegal aliens were very forthcoming and very helpful to Derrick,” Jacobs said. “They seem like nice guys. They are not the problem here.”
The illegal aliens, known as “material witnesses” in court documents, were scheduled to give sworn testimony in depositions in McCoy’s case Wednesday afternoon.
That would have been McCoy’s only chance to cross-examine them, as the illegal aliens were scheduled for deportation shortly after testifying, in advance of McCoy’s trial.
McCoy said he is seeking an attorney who will help him to file a civil rights lawsuit for false arrest and imprisonment.
“I really hope that my case can help out many more cases,” McCoy said. “I’m really happy I’m set free now and I don’t have to deal with this for the rest of my life.”