- The Washington Times - Tuesday, November 15, 2011

The union that represents U.S. Border Patrol agents is challenging an effort by Texas prosecutors to block the release of information used to build a successful case against a Border Patrol agent convicted of wielding excessive force, saying the American public has a right to see the evidence.

Shawn P. Moran, vice president of the National Border Patrol Council (NBPC), said the U.S. Attorney’s Office for the Western District of Texas sought a protective order to prohibit the release of discovery material without stating a reason — other than to suggest it contains information of a “sensitive nature.”

“Could the reason behind this motion be that U.S. Attorney Robert Pitman does not want the public to see the real nature of his selective prosecution of Border Patrol agents,” said Mr. Moran, whose group has taken its case to U.S. District Court.

“Perhaps it is to hide the flimsy evidence that supported his prosecution in order to avoid the public outcry as occurred after the prosecution of Border Patrol Agents Ramos and Compean.”

In 2009, President Bush commuted the sentences of Border Patrol Agents Ignacio Ramos and Jose Compean, who had become cause celebres after being sentenced to 11 and 12 years in prison, respectively, for shooting a drug smuggler in the buttocks. The agents were released after serving two years.

The NBPC has criticized as an “exorbitant waste of time” the prosecution of Agent Jesus E. Diaz Jr., who was sentenced last month to 24 months in prison for depriving a 15-year-old suspected drug smuggler of his constitutional rights.

Diaz was indicted in November 2009, charged with deprivation of rights under color of law during an October 2008 arrest near Eagle Pass, Texas, where agents had responded to a report that illegal immigrants had crossed the Rio Grande with bundles of drugs. He was convicted after a two-day trial on one count of using excessive force and five counts of making false statements.

The agent was accused of lifting the handcuffed suspected drug smuggler’s hands above his head while placing his knee in his back. The prosecution had been sought by the Mexican government, with the Mexican Consulate in Eagle Pass sending a formal complaint just hours after the arrest, alleging that the teenager had been beaten.

Defense attorneys argued that there were no injuries or bruises on the suspected smuggler’s lower arms where the handcuffs had been placed nor any bruising resulting from a knee on his back. Evidence presented at trial showed only marks on his body from the straps of the pack he carried containing the suspected drugs.

Border Patrol agents found more than 150 pounds of marijuana at the arrest site.

The U.S. attorney’s office, in a statement, acknowledged that the teenager admitted he was smuggling marijuana into the United States, but said it was Border Patrol agent trainees at the site who testified that Diaz used unnecessary force and complained about it to their supervisor. Prosecutors said Diaz improperly pulled the teenager’s handcuffed arms from behind his back while questioning him on where he and other suspected smugglers with him had hidden their drugs.

The initial allegations against Diaz, 31, a seven-year Border Patrol veteran, were investigated by the Department of Homeland Security’s Office of Inspector General and U.S. Immigration and Customs Enforcement’s Office of Professional Responsibility, which cleared the agent of any wrongdoing. A year later, the Internal Affairs Division at U.S. Customs and Border Protection ruled differently and the agent was charged.

Mr. Moran, himself a veteran agent, said Mr. Diaz’s actions did not rise to the level of a crime, and that the accusations should have been dealt with at the administrative level — resulting at most in his termination.

He also said the case against Diaz “continues the tradition of bias against Border Patrol agents in the Western District of Texas,” where the U.S. attorney’s office also prosecuted Border Patrol Agents Ramos and Compean in 2006 after they shot a drug-smuggling suspect, Osvaldo Aldrete-Davila, in the buttocks as he tried to flee back to Mexico after abandoning a van filled with 800 pounds of marijuana.

Meanwhile, the Justice Department has sent a follow-up notice demanding that Diaz’s family immediately pay nearly $7,000 in fines, even though his family says a judge gave them a grace period. It’s the second notice the Justice Department has sent to the family, and it threatens new penalties if the money isn’t paid within 30 days.

Diaz’s wife, Diana, who also is a Border Patrol agent, said the judge in the case said the family would have a 60-day grace period after Mr. Diaz is released before members would have to make a payment. Diaz is responsible for a $600 assessment of fees, $270 in restitution and a $6,000 fine.

Daryl Fields, a spokesman for the U.S. attorney’s office, said the office was pursuing “statutorily authorized collection efforts” and was “treating this case no differently than other cases.”

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