FBI: Corrupt US border agents a 'serious' threat

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by Mark Greenblatt / KHOU 11 News

khou.com

Posted on May 24, 2011 at 10:12 PM

Updated Wednesday, May 25 at 11:59 AM

HOUSTON --  New figures show 122 current or former U.S. federal agents and employees of the Customs and Border Protection agency have been arrested or indicted for corruption since October of 2004. It is a trend that has both the FBI and key members of Congress concerned.

In addition, 92 of those cases were considered instances of “Mission Compromising Corruption,” in which the employee violated, or facilitated the violation of the laws the agency enforces-- such as those related to the smuggling of drugs or illegal aliens.

The above numbers are derived from U.S. Customs and Border Protection (CBP) data released to KHOU-TV in response to a Freedom of Information Act request.

“When it happens on our side of the border, with our law enforcement, then I think the American people lose trust,” said U.S. Representative Michael McCaul, who serves as the chairman of the Homeland Security Subcommittee on Oversight, Investigations and Management.

“We in the Congress need to highlight this issue, as well as to send a message to (those) bad apples that you know what, we’re not going to stand for this,” he said.

Prior to being elected to Congress, McCaul served as Chief of Counter Terrorism and National Security in the U.S. Attorney’s office in Texas, and led the Joint Terrorism Task Force charged with detecting, deterring and preventing terrorist activity. He also served as a federal prosecutor in the Department of Justice’s Public Integrity Section in Washington, D.C., where his Congressional biography states he went after corrupt public officials. 

From that perspective, McCaul says he is troubled by what seems to be a gaping hole that KHOU-TV discovered in CBP’s anti-corruption policies.   You see, in other law enforcement agencies like the Federal Bureau of Investigation, every employee goes through an extensive pre-employment screening, as well as new re-investigations after they are hired, which include polygraph exams every five years.

The CBP, however, does not regularly polygraph its employees after they are hired and placed into sensitive positions along the border,  where cartels are known to be targeting them.

“It makes no sense, because the corruption is not going to take place before they are hired. The corruption takes place after they are hired,” said McCaul. “That’s the cartels’ method of operation. They corrupt, they buy off police chiefs, they buy off mayors, they buy off elected officials, and now they’re trying to buy off our border patrol agents. And that is what is so disturbing about this story.”

For example, there is the case of Border Patrol agent Solomon Ruiz, sentenced to 14 years in prison after pleading guilty to bribery charges following a successful FBI sting operation.

“We developed source information that, for bribes, he was guarding drug shipments across the U.S. border, using his position as an officer,” said FBI Dep. Assistant Director David Cardona.  

According to court documents, Ruiz was heard alerting drug trafficking associates via cell phones whenever a law enforcement operation was underway.  So the FBI took action.

“We orchestrated a series of undercover operations where we (sent in) undercover personnel as drug traffickers.”

One of those personnel was a cooperating witness who posed as an individual with high-level ties to members of the Gulf Cartel.  

According to the documents, Ruiz met with the witness and informed him he was currently assisting several other drug-trafficking organizations in Starr County. Ruiz claimed he could assist the witness’s operation by ensuring that there was no CBP presence near illegal drug crossing locations, by monitoring law enforcement radio traffic, and also escorting any drug-laden vehicles.   Ruiz asked for a $10,000 retainer fee and said that he charged $4,000 to escort a car and $6,000 to escort a van.

The FBI released undercover videotape to KHOU-TV which shows Ruiz accepting a $4,000 bribe for his future assistance.

Eventually, according to the documents, Ruiz did assist the FBI’s witness in smuggling in 25 kilograms of cocaine into the United States, in what was a coordinated sting by the FBI.

“Amazingly these people sell their ethics for small dollar figures,” said Cardona.   “There’s always a pattern. The bribes start off small, they work their way up and it’s just a constant flow. They become addicted to the illegal revenue flow of the constant bribes coming in.”

Cardona helps oversee the FBI’s criminal investigative division, where he says the FBI director has made fighting public corruption the very top priority of the division.

“It’s our top criminal priority… it needs to be,” he said, noting his chief area of concern is the U.S. and
Mexican border.  “We’re putting great effort into addressing it around the country at all levels, and in particular along the Southwest border because of the threats posed by the Mexican drug cartels.”

The FBI considers the “Southwest” border the entire region of the border that runs from Brownsville in Texas all the way to the Pacific Ocean near San Diego. 

Sometimes, it is not drugs, but sex that convinces the border agents to switch sides.  

In January of 2011, U.S. Border Agent Rudy Soliz got 30 months in federal prison after pleading guilty to alien smuggling and bribery in exchange for sexual favors.  

The U.S. Attorney’s office in the Southern District of Texas notes Soliz knowingly allowed a 28-year old female to illegally bring in aliens and merchandise through his vehicle inspection lane in return for sexual favors with the woman.    The woman eventually pled guilty to possession with intent to distribute more than five kilos of cocaine.

Cardona warns that when border agents become corrupt, “the threat is serious” to national security, in addition to bringing drugs or illegal aliens into the United States.  

“There’s an opportunity for a terrorist organization to view it as a portal, an entry into the U.S.,” he said.

Cardona points to the example of U.S. Border Agent Luis Aguilar, who pled guilty to taking bribes for simply waving cars and trucks into the country. In his taped confession, Aguilar admitted his price was $2,000 for each person that he smuggled in.  

When caught, Aguilar had already been doing the scheme for some time and the bribe money had added up.

“Two hundred thousand dollars, that’s not really that much,” Aguilar told his interrogators, referencing the money he received for bringing people into the U.S. 

He also laughed as he said: “Nobody that I know was a Bin-Laden or something.”

“That’s a threat to Houston, that’s a threat to Chicago, that’s a threat to L.A. or New York,” said Rep. McCaul, who says he now plans to hold a Congressional hearing to study corruption in law enforcement along the border.

At that hearing, he also plans to address other serious questions about the effectiveness of Customs and Border Protection in policing its own employees and agents.

It turns out, an analysis of data released to KHOU following a Freedom of Information Act request show most violations, of even serious regulations, never result in arrests or indictments.   For instance, in just one year during the agency’s 2009 fiscal year, internal affairs upheld 1,924 investigations.

Every year since 2004, one division of the agency has stood out among the rest with a much higher rate of sustained internal affairs investigations and disciplinary actions against its employees: the Border Patrol division. 

In fact, for the past seven years the rate of discipline across the entire population of employees working in the Border Patrol division has remained steadily around five or six percent of sustained internal affairs cases, double the disciplinary rate of the second closest division in CBP which is called “field operations.”  Nearly every other division had a much lower rate of sustained cases.  Border Patrol’s higher overall rate did not waver following a recent hiring surge of new agents at the agency.

Border Patrol agents typically work in one or two man patrols or at checkpoints dozens of miles north of the border and away from large groups of other federal agents. They often work alone or outside supervision of cameras where some suspect it is easier to do something wrong and get away with it.

Interestingly, the FBI says the majority of the actual criminal corruption cases it investigates from outside the CBP come out of the field operations division of CBP, where most employees work at the actual border bridges and highway entry points themselves.  Typically, these areas are surrounded by heavy surveillance and many employees. 

While the CBP maintains most of the nearly 2,000 infractions it has sustained annually in recent years are minor in nature, a KHOU review of data released through the Freedom of Information Act reveals the cases that are handled “administratively” and not through indictments are often quite serious themselves.

For example, agency records show that since 2004, 50 employees of CBP were found to be in “possession, use, sale, or distribution of illegal drugs or substances.”   The agency’s own internal disciplinary guide, which often recommends lenient discipline for minor infractions, recommends employees be fired on the first offense if caught with illegal drugs.

However, while KHOU found 19 employees were indeed removed for illegal drug related offenses, we also found at least 2 simply got a suspension.  Four others received nothing more than reprimands.

More troublesome to both Culberson and McCaul was that 25 employees under investigation for possessing or selling illegal drugs were allowed to simply resign or even retire with a pension, taking advantage of what seems to be an open secret in the agency:    If you’re under investigation by internal affairs or about to have discipline handed down against you, you can prevent the action on your own simply by resigning or even retiring.  Following your voluntary separation, the CBP will immediately stop any internal affairs investigation or employment-related discipline against you.

Of note: The Department of Justice has the right to continue the pursuit of criminal cases against employees even after their resignations or terminations, but it often does not do so unless the charges themselves deal with the type of activity that threatens other Americans. 

Consequently, agents found possessing illegal drugs or committing other crimes that don’t actually threaten national security or other Americans are often allowed to walk away with no formal punishment or finding of wrongdoing that ever gets noted on their employment record, even when CBP’s own internal affairs division gathered strong evidence of the crime.

Agency records note case after case where employees retired or resigned “in lieu of involuntary separation.”   Senior agency officials familiar with the disciplinary process say when the agency’s actions are coded in this manner, it means both the internal affairs and labor divisions of CBP agreed there was strong enough evidence against the employee to send them an actual notice of impending action that was about to be taken against them.  When the employee quit or retired, that pending action was automatically revoked.

Senior officials within the agency claim they are frustrated by the sight of having to watch these types of employees in particular walk away, but say current federal rules tie their hands and actually  prohibit the agency from moving forward with administrative actions once the employee retires or quits.

“It’s outrageous,” said U.S. Rep. John Culberson, a member of the powerful House Appropriations committee, who was also selected as the Vice Chair of the Homeland Security subcommittee.   “What you’ve uncovered is an obvious and very dangerous flaw in our law enforcement system.”

Culberson says there should be no room in law enforcement for those who commit crimes, even if they are not serious enough to warrant federal prosecution by a U.S. Attorney.

“Any violation of criminal law ought to be immediate disqualification for any office of public trust. As a public official- for a law enforcement official in particular, (they should be) held to a much higher standard.”

Culberson says without finishing up administrative investigations on those who do resign while under investigation for serious matters, it creates other security gaps for future employers who might not ever be warned about a record of bad behavior.  The employees could honestly answer they had never had any disciplinary actions taken against them if ever asked, as long as they quit before any final action was taken.

“They could then walk in and go work for the Austin Police Department. Maybe they could walk in to a police department in Arizona and get a job,” Culberson said. “It’s just absolutely unacceptable.”

In the data released to KHOU, which shows all recorded actions the agency took against employees during its fiscal years of 2004-2010, other serious employee infractions appear to not only have avoided any criminal action but also resulted in what Culberson characterized as ‘light’ discipline when the agency did take internal action.

For example, one CBP officer found to be “Knowingly And Inappropriately Associating With Informants or Criminal Suspects” received a just a five day suspension and then presumably went back out on the job protecting the border.  Another employee found committing the same offense received a mere reprimand.  Others were allowed to retire while still under investigation.

The CBP’s own disciplinary guide stresses the importance of examining each offense on a case by case basis, but for the charge of “Material and intentional falsification of documents or statements” it recommends automatic removal due to the seriousness of the offense, which it defines as including “committing perjury, providing false testimony, and knowingly making a false statement or accusation...” or other activities serious enough to potentially jeopardize an agent’s ability to serve as a federal witness.

The guide also recommends harsher punishments for supervisors engaged in wrongful behavior like that because they are expected to set the moral standard for others in the agency. However, KHOU-TV found again and again the agency fails to follow through on that goal and in some cases it is the supervisors themselves who receive lighter sentences. 

For instance, for the “Material and intentional falsification of documents or statements,” many agents were indeed removed. However, one supervisory border patrol agent received  just a 5-day suspension. A supervisory mission support specialist received just a one day suspension.   Yet another supervisory officer received just a reprimand. 

The agency has a separate category of infraction for less serious falsifications of documents that are not “material” to the job of the agents or that appear to have been unintentional errors.

The CBP would not release the agency’s “proposed” disciplinary actions against offenders, but rather, only released the “final” actions taken against employees, which come about after the agency’s labor division reviews investigative files from internal affairs and talks with union representatives.

For the charge of “Assisting violators in activities jeopardizing the customs mission,” most offenders were fired but one CBP officer received just a 20 day suspension, which is below the recommended range of discipline for first time offenders.

We also found more than 300 sustained cases of “Criminal or Disgraceful Conduct, or Conduct Prejudicial to The Government,” a wide-ranging category the agency apparently uses for all sorts of charges including for when an employee is caught driving under the influence of alcohol while off duty. 

The lack of more precise categorization by CBP prevents easy spotting of trends, a current problem a senior agency official familiar with the agency’s disciplinary procedures acknowledges.                

For “Knowingly and inappropriately associating with informants or criminal suspects,” many instances do indeed result in firings, but we found one case with just a five day suspension and another where there was just a reprimand.

For “Operating a Government Vehicle While Under The Influence of Alcohol”- one supervisory border patrol agent received a ten day suspension, and was presumably allowed back on the job.

For “Use of Public Office for personal gain”- 1 employee was fired, while 3 written reprimands were given out to others. One of the employees who got just a reprimand was a supervisory border patrol agent.

“We want to focus on the persons who are gonna cause a risk to the American public and prosecute those,” said U.S. Attorney Jose Moreno, the chief federal prosecutor for the Southern District of Texas. 
Moreno says on the whole, he believes the vast majority of border patrol agents serve America proudly while working mostly thankless jobs.  

He adds corruption cases that do come his way against federal agents can take a long time to prepare because of their complexity, but also says once his office does file charges the evidence is so organized it almost always leads to a guilty plea from the agent.

However, Moreno says he gets far and away more criminal referrals for potential prosecutions on CBP employees than he can or will prosecute.  He declined to offer statistics to KHOU.

“There are a lot of… things that can be taken care of administratively through sanctions, or suspensions or firings if that’s necessary. We want to concentrate on the persons who are going to cause a risk to the American public and prosecute those,” he said.

We asked Moreno about how he handles cases such as the “possession” of illegal drugs, often noted in the agency’s files.   

“Possession, you know, it’s a problem. But it’s a problem for the CBP agent, it’s a problem for the police officer, it’s a problem for the county commissioner, it’s a problem for anyone to possess them. It’s illegal… But it’s not the same as trafficking. We look at those much more seriously,” Moreno said.

Moreno also added just because he declines a federal criminal prosecution does not mean that the agency itself should not proceed ahead internally with administrative action.  He adds, often times, he is told they will do just that.

“A lot of the time when people call our office to make a referral… the regulation or law requires them to, but they’re making a referral simply to ask you to decline it because they would rather take care of it administratively.”

Customs and Border Protection allowed senior staff from both their internal affairs and their labor division to speak openly with KHOU-TV in order to help with the accuracy of this report.   Those interviews were conducted in an on the record but not for attribution manner.    As for the CBP’s upper-level officials, they originally agreed to an interview regarding how their agency fights corruption and dishes out discipline to others who commit crimes or violate serious regulations. Ultimately, they backed out of that agreement and the interview with KHOU-TV.

“We have determined that the appropriate person for the interview is probably going to be the Assistant Commissioner for Internal Affairs, James Tomsheck,” a public affairs specialist for CBP told KHOU in early May.  “We are working to schedule an interview for you at the end of next week as requested. The delay is nothing more than coordination,” she said, following repeated attempts by KHOU to arrange a meeting. 

Soon after that statement, the agency ceased communicating with KHOU about any attempts to coordinate an interview with senior leadership.

“Well they can’t hide,” said Rep. McCaul. “And I have the power to hold a hearing and subpoena them if necessary.”

McCaul’s staff says indeed, he will hold hearings on these matters. The dates will be set in the near future.

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