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Using a tunnel for illegal drug trafficking is a separate federal crime in and of itself. The crime carries with it a maximum sentence of 20 years under Title 18 U.S.C. § 555.
Six defendants were indicted in connection with building, financing and maintaining a 415-yard tunnel across the border near San Diego to facilitate drug trafficking. About 300 yards north of the international border, defendants were using a tunnel that led from a restaurant in Mexicali to a house in Calexico, CA. Agents discovered a hole in the floor with the underground shaft concealed. Defendants were also charged with conspiracy to distribute over 1,000 kilograms of marijuana (mandatory minimum of 10 years in prison).
Conspiracy is a specific intent crime. All of the defendants must be found to have agreed to the unlawful conduct. An indictment may name individuals who may not have actually physically handled or possessed drugs.
Only five of the defendants were charged with using a narcotics tunnel. The charges allow for punishment for “recklessly disregarding the use of a tunnel.” That means there had to be some level of knowledge or awareness that a tunnel was being used for illicit purposes and the defendants recklessly disregarded that information. An affirmative defense can be that the defendants had insufficient involvement and knowledge about the tunnel to be deemed “recklessly disregarding” any fact.
Tunnels have been used to traffic humans and drugs. With strong implications for border security, the government has tightened its enforcement and prosecution of these crimes.
