WND has obtained an exclusive copy of the Department of Homeland Security Office of Professional Responsibility investigative report from April 2009 that documents the U.S. Attorney's Office in Del Rio, Texas, made a decision not to prosecute Border Patrol agent Jesus "Chito" Diaz, Jr. for a situation that developed on Oct. 16, 2008, when he detained a Mexican teenage drug smuggler on the South Texas border.

The report confirmed that the federal agents knew the drug suspect had lied about the situation, yet it was his testimony that prosecutors later insisted on using in the trial for Diaz, which resulted in his conviction and two-year prison sentence.

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The "Report of Investigation," filed by the DHS Immigration and Customs Enforcement Office of Professional Responsibility on April 20, 2009, recommended that the Diaz should instead be transferred for administrative action.

U.S. Attorney declines to prosecute Diaz

On page three, a key paragraph of the four-page report, available in its entirety here, documented that the unnamed teenage drug smuggler had lied on the scene about any knowledge of marijuana, thereby compromising his credibility:

On April 16, 2009, AUSA (Assistant U.S. Attorney) Schall contacted SSA (Senior Special Agent) White and advised that he had conferred with U.S. Department of Justice, Prosecutor Michal Frank, the USAO (U.S. Attorney's Office)/San Antonio and the USAO/Del Rio. AUSA Schall stated that based on the information that [Name Redacted] was apprehended in what appeared to be illegal activity of smuggling marihuana into the U.S., and that he lied to BPAs (Border Patrol Agents) on the scene about any knowledge of marijuana; [Name Redacted] credibility was questionable at best. Further, based on the fact that [Name Redacted] was not available to testify about the alleged use of excessive force applied to him by BPA DIAZ, and there did not appear to be any chance of locating him in the near future, the USAO/Del Rio declined to prosecute BPA DIAZ.

The name redacted in the paragraph appears to be the name of the Mexican teenage drug smuggler apprehended by Diaz in the incident.

The memo further states that on April 16, 2009, the Resident Agent in Charge (RAIC) Donald Bynum of the Customs and Border Protection, Office of Internal Affairs in Del Rio had been officially briefed on the status of the investigation and the declination of prosecution by the U.S. Attorney’s Office in Del Rio.

"RAIC Bynum stated that the CPA-IA/Del Rio (Customs and Border Protection, Office of Internal Affairs in Del Rio) would accept the case for administrative action," the DHS report continued.

"This case meets the criteria to be transferred to CBP-IA for administrative action," the DHS report concluded in the final sentence of the report.

How hurt was the teenage drug smuggler released to Mexico

The DHS investigative report obtained by WND also cast doubt on the extent to which Diaz had treated the teenage drug smuggler abusively.

The third paragraph of the report noted:

Information developed during the investigation revealed that on October 16, 2009, Special Agent (SA) Roberto Perez, Department of Homeland Security, Office of Inspector General, Del Rio, TX (DHS-OIG/Del Rio), responded to the BP/Eagle Pass (Border Patrol in Eagle Pass, Texas) and interviewed [Name Redacted] regarding the allegations. SA Perez obtained a sworn statement from [Name Redacted] in which [Name Redacted] described that after he had been handcuffed by "el official" (the official), his arms were twisted and "heavy pressure" was applied to him when the official placed his knees on [Name Redacted] body. [Name Redacted] did not identify the official by name, and only provided a brief description saying the official was tall, with a heavy build, and dark complexion. In his statement [Name Redacted] did not complain that he was injured, hurt, or in pain when the official twisted his arms and applied the "heavy pressure." [Name redacted] was processed for voluntary return to Mexico by BPA Marco A. Ramirez, and subsequently returned to Mexico on the same date.

Again, the name redacted appears to be the name of the Mexican teenage drug smuggler.

The memo further documents the Mexican teenage drug smuggler could not be located in Mexico after he was released by the Border Patrol and allowed to return across the border without being held for prosecution on drug smuggling charges.

The memo suggests that "several of the BPAs on the scene observed what they believed to be the use of excessive force applied to [Name Redacted] by BPA Diaz," though the exact nature of that excessive force was not specified in the report.

Moreover, the report gives no indication that the apprehended Mexican drug smuggler was so badly injured in the incident that he could not return immediately to Mexico, once he was released by U.S. authorities and allowed to return home voluntarily.

Instead, the report suggests that once U.S. authorities indicated the teenage drug smuggler was not going to be held on drug charges and released him, he slipped back into Mexico and disappeared.

So, why was Diaz prosecuted?

"It looks to me like the Justice Department wanted a scalp to give to Mexico," Andy Ramirez, President of the Law Enforcement Officers Advocates Council, told WND.

"If we look at the time frame, a month after the DHS OPR investigative report was filed in April 2009, the Mexican Consulate told Border Patrol Internal Affairs that the Mexican teenager had been found," he said. "The prosecution was done in order to satisfy the Mexican government."

A complaint filed by the Mexican government on October 16, 2008, the day of the incident, includes a hand-written account of the incident that appears to have been written by the Mexican teenage drug-smuggler in the presence of Mexican authorities.

What remains undocumented is where the youth went after the Mexican consulate filed the statement made on Oct. 16, 2008, with the U.S. government.

Also unknown is how the Mexican government subsequently found the youth and made him available to U.S. government authorities to testify at trial against Diaz.

On October 20, U.S. District Judge Alia Moses Ludham sentenced Diaz to 24-months in prison after he was found guilty in a federal criminal trial of denying the Mexican teenager of his constitutional rights by applying excessive force during the incident.

Diaz was accused of having handcuffed the youth behind his back and pressing the suspect to the ground with his knee.

He is currently serving his sentence in federal prison in solitary confinement.

U.S. Rep. Duncan Hunter, R-Calif., already has asked for a congressional investigation and he's suggested to Attorney General Eric Holder that a fine of $6,870, which the government already is trying to collect from Diaz' family, either be waived or delayed.

Hunter has warned, "The prosecution of Agent Diaz sets a dangerous precedent and creates unnecessary confusion among law enforcement on the border. We must not send a message to the men and woman of the U.S. Border Patrol, as well as the smugglers and criminals that they are committed to apprehending, that they could face jail time or such disproportionate sentencing for doing their jobs, regardless of the facts."

WND previously reported that Diaz was sentenced to 24 months in jail for grabbing the arms of the drug smuggler and lifting them to make him comply with orders. According to the FreeAgentDiaz.com website, Diaz was "maliciously prosecuted at the request of the Mexican consul in Eagle Pass, Texas."

The legal case against the officer was "solely motivated by politics and is yet another example of prosecutorial abuse and misconduct while protecting Mexico's narco-terror influences," organizers of the website said.

Border watchers will remember the extended battle fought by Border Patrol Agents Ignacio Ramos and Jose Compean after they were prosecuted, convicted and jailed, again at the request of the Mexican government, for shooting at and striking a drug smuggler who reportedly dropped a load in the U.S. and was fleeing back to Mexico.

Their punishments ultimately were commuted by President George W. Bush, although they did not receive pardons, leaving their convictions on their records.

 

Their original case stemmed from the Feb. 17, 2005, shooting of Oswaldo Aldrete-Davila. The two officers said they thought Aldrete-Davila was armed and made a threatening move.

WND was among the first to report Aldrete-Davila then committed a second drug offense, smuggling a second load of 750 pounds of marijuana across the border while he was under the protection of immunity from federal prosecutor Johnny Sutton's office and in possession of a border-pass card authorized by the Department of Homeland Security.

WND also reported when Aldrete-Davila admitted to federal drug smuggling charges, was convicted and sentenced to federal prison for a 57 months.

Aldrete-Davila was granted immunity for his drug smuggling by federal prosecutors in exchange for his testimony against the agents. He had crossed the Rio Grande and picked up a marijuana-loaded vehicle near El Paso. After a car chase in which he fled from the officers, he abandoned the vehicle and ran back across the border on foot. He was shot in the buttocks as he ran.

 

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