Obama Administration and Eric Holder Show Bias Against Border
Patrol Agents
 El Paso native Jesus "Chito" E. Diaz Jr. lost his career with the U.S.
Border Patrol and ended up with a felony conviction after an encounter three
years ago with a Mexican teenage drug smuggler on the South Texas border.
On Oct. 20, U.S. District Judge Alia Moses Ludham sentenced Diaz to 24
months in prison for depriving a 15-year-old Mexican citizen of his
constitutional rights under color of law.
Diaz was accused of pulling off the handcuffs on the boy, an admitted drug
smuggler, slamming him to the ground, and pressing the youth's back with his
knee. Diaz pleaded not guilty in his trial in February to one count of
excessive force and five counts of lying to internal affairs officers.
The National Border Patrol Council, which represents more than 17,000 Border
Patrol agents, and the Law Enforcement Officers Advocates Council, an
advocacy group, contend that Diaz was unfairly targeted for prosecution and
that his case's outcome sets a bad precedent for other agents who serve on
the front lines.
"This case continues the tradition of bias against Border Patrol agents in
the Western District of Texas," the National Border Patrol said in a
statement Thursday. "Diaz's actions did not rise to the level of a crime ...
While the U.S. Attorney's Office in the Western District of Texas has a job
to do, one that includes prosecuting the criminals who commit crimes, it has
shown a distinctly quick trigger in going after Border Patrol agents."
Diaz, 33, who is in custody, could not be reached for comment. His wife,
Diana Diaz, a Border Patrol supervisor in Del Rio, Texas, said her husband
should not be in prison.
"I am speaking only as his wife when I say that 'Chito' does not belong in
jail," she said.
Diaz Jr. attended El Paso Community College and also has a brother who
serves in the Border Patrol and other relatives in El Paso. He and his wife
have six children.
The Department of Homeland Security's Office of Inspector General and the
U.S. Immigration and Customs Enforcement's Office of Professional
Responsibility cleared Diaz of any wrongdoing in the 2008 incident. However,
U.S. Customs and Border Protection and the U.S. Attorney's Office proceeded
against Diaz.
Andy Ramirez, president of the LEOAC, said he believes the U.S. government
went forward with the charges against Diaz to appease the Mexican
government.
The Mexican consulate in Piedras Negras, Coahuila, Mexico, where the
juvenile lived, submitted a complaint alleging that Diaz had mistreated the
boy while in the agent's custody.
Rarmirez said GOP presidential hopeful Michele Bachmann, a congresswoman
from Minnesota, and U.S. Rep. Duncan Hunter, R-Calif., have offered to help
Diaz. Gov. Rick Perry, also a presidential nominee hopeful for the
Republican Party, declined to get involved.
In a letter to Attorney General Eric Holder, Hunter complained about the
Diaz prosecution, and compared it to the 2006 case against former El Paso
Border Patrol Agents Ignacio Ramos and José Alonso Compeán.
"It was the same office, under U.S. Attorney Johnny Sutton, that
unapologetically led the prosecution against Agents Ramos and Compeán, going
as far as providing the smuggler with full immunity and border-crossing
documentation," Hunter's letter said. "In the case of Agent Diaz, the
smuggler was also given immunity for reasons that are not at all clear."
Ramos and Compeán were sentenced to more than 10 years in prison each in
connection with the shooting of a drug smuggler who was fleeing back to
Mexico. After a national campaign of support for the two agents,
then-President George W. Bush commuted their sentences and they were
released.
The Encounter - Diaz Jr. was starting his shift when Border Patrol
agents were sent to check on a report of possible drug smuggling near the
Rio Grande just outside of Eagle Pass, which is across the border from
Piedras Negras.
Diaz and the other agents arrived at a pecan orchard known as the Rosetta
Farm at about 2 a.m. on Oct. 16, 2008. Witnesses at Diaz's trial said the
suspects were hiding among the high grass and a fallen tree in the area.
Border Patrol agents and a canine unit eventually encountered the
15-year-old and an adult suspect.
According to court documents, the suspects crossed the Rio Grande
illegally on a boat, and were supposed to transport backpacks filled with
marijuana to the U.S. side of the border.
They did not have the backpacks on them when they were apprehended, but
showed strap marks on their shoulders. Authorities identified the adult
suspect as a Mara Salvatrucha, or MS-13, gang member with a rap sheet.
Neither the adult nor the juvenile was charged with drug smuggling.
According to U.S. drug investigators, some MS-13 members are affiliated with
the Sinaloa cartel, which is active in the Piedras Negras-Eagle Pass
smuggling corridor. The cartel is led by Joaquin "Chapo" Guzman.
At one point during the 2008 incident, Diaz took custody of the teenager,
who had been handcuffed by another Border Patrol agent, and asked the boy "donde
esta la mota?" ("Where is the pot?").
The boy testified that he was handcuffed from behind and Diaz lifted his
arms with the cuffs, causing him pain, slammed him on the ground and pressed
his knee against the boy's back. The encounter between Diaz and the boy
lasted about 10 minutes, according to testimony.
Agents found the backpacks with marijuana near where they apprehended the
suspects. The Border Patrol turned over the marijuana to the Drug
Enforcement Administration.
The boy was transported by vehicle to the Border Patrol station for
processing, and did not mention the mistreatment until after he met the next
day with Mexican consulate officials.
The teenager agreed to testify against Diaz, and received immunity against
any charges related to the drugs, illegal entry or of initially lying to
federal officials about the marijuana. He also received a U.S. visa.
The LEOAC's Ramirez said two of the Border Patrol trainee agents who
testified against Diaz were fired later, one for sleeping on the job and the
other for refusing to submit to a drug urinalysis test.
Ramirez also contends that Diaz received unfair treatment, especially
compared with the U.S. Attorney's case against Alex Moses Jr. of Eagle Pass.
Moses was a U.S. Customs and Border Protection inspector who received five
years' probation after being convicted of smuggling 6 ounces of cocaine from
Mexico in 2008.
Ramirez said Moses is a cousin of Federal Judge Alia Moses Ludham, who
presided over the Diaz trial. She was the chief federal prosecutor for the
U.S. Western District of Texas in Del Rio before Bush nominated her to the
judgeship.
"The common denominator was Johnny Sutton, the U.S. Attorney of the Western
District of Texas who ordered the prosecution of Ramos and Compeán, and who
began the investigation against Diaz before he retired," Ramirez said.
Earlier this year, in another case pending in the Western District of Texas,
a U.S. district judge dismissed a lawsuit against the U.S. government in
connection with the fatal shooting of a 15-year-old boy on the Rio Grande
near the Paso del Norte Bridge.
The Border Patrol agent involved in the shooting, Jesus Mesa Jr., has not
been charged with anything. His lawyer, Randolph Ortega, has said that Mesa
was defending himself against rock throwing.
Relatives and friends of Diaz are circulating a petition for the former
agent to receive a presidential pardon. The National Border Patrol Council
indicated that it probably will assist with an appeal of Diaz's conviction.
www.elpasotimes.com
By Diana Washington Valdez \ El Paso Times
Posted: 10/31/2011 http://www.elpasotimes.com/news/ci_19229452
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