By Diana Washington Valdez \ El Paso Times
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.
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.