11/17/2011

Dave GrossiTactics & Training
with Dave Grossi

Epilogue: Justice for Border Patrol Agent Jesus Diaz?

One can only guess what the jury’s findings might have been had they known about the “armed escort alert” received by the agents 24 hours earlier that escalated their awareness level

By now, most of you know that this past summer, veteran Border Patrol Agent Jesus Diaz was found guilty of several charges resulting from his use of physical force against a drug-smuggling illegal immigrant and has been sentenced to two years in federal prison. Few of you may know that I was the police procedures expert who testified for Agent Diaz at his federal criminal trial this past February. I wrote about the case in a somewhat disguised fashion as part of a two-part series entitled “A Disturbing Trend: Criminal Charges Against Cops” for PoliceOne this past March and April. I deliberately masked the specific issues as Diaz had not been sentenced at that time. However, now that the punishment phase is over, I can fill in some of the blanks from that case.

As the national media has been reporting, back in October 2008, Agent Jesus Diaz was one of a team of Border Patrol agents who responded to a sensor activation at the USA-Mexico border near Eagle Pass, Texas. This area is a frequent crossing point for illegals who are smuggling dope across our southern border. Upon Diaz’s arrival, the suspect in question — age 15 — was already in cuffs. He was just one of three dopers who had made the crossing each carrying a 50-pound backpack loaded with marijuana.

The juvie and one other smuggler were caught rather quickly — the third escaped leaving behind his 50-pound backpack. He was tracked a short distance by the BP canine that had responded to the sensor activation. The dog was still actively alerting to the third suspect’s near presence, but had been pulled off the track to try to locate more dope. The scene was chaotic — a very dark abandoned pecan orchard, one suspect still at large, and the two who were in custody had not been searched or even patted down thoroughly. All this info was known to the jury that convicted Diaz.

What the Judge Wouldn’t Allow
Now here’s what they didn’t know... because they were not allowed to hear it.

The day before this incident, the Border Patrol field office in Eagle Pass, Texas had received a memo that indicated that drug smugglers were going to be escorted by armed guards across the river and back — not so much to protect the smugglers from the BP agents, but to make sure the smugglers returned with the money they received from the dope sale. However, the judge wouldn’t allow that important officer safety info to be presented in court — despite the vigorous objections of Agent Diaz’s attorneys.

The jury was also not allowed to view photographs or even hear about the gang tattoos the second smuggler had all over his body. Those tats bore the name “Vatos Locos” across the suspect’s shaved head, forehead, arms, and neck. The Crazy Boyz gang is well known to the BP agents that work the Eagle Pass station as an extremely violent criminal gang. Those tats, along with the armed escort memo, also raised their awareness level up a notch or two. But, the court wouldn’t allow the “armed alert” memo or the presence of the “gang tats” to be discussed in open court.

Another matter than was rather disturbing about this trial — the second such trial Diaz faced within the preceding six-month period (the first had resulted in a mistrial) — was the presence of a mannequin the US Attorney’s Office dragged into the courtroom (over the objections of Diaz’s two very capable and aggressive attorneys) and plopped down in front of the jury.

This dummy had arms that permitted 180-degree rotation from the traditional proned-out behind-the-back position normally used for handcuffing, all the way up over the head around to the front of the body; a position impossible for anybody other than Rubber Man to achieve. This 180-degree rotation was a frequent maneuver that the Assistant U.S. Attorney repeatedly demonstrated in court, again over Diaz’s attorney’s objections, in spite of the fact that no one, not even the illegal drug smuggler, ever testified that this maneuver was ever performed by Diaz.

One Can Only Guess...
In fact, the illegal drug smuggler — now an adult — never testified to any injury suffered at the hands of Agent Diaz, except for some “pressure on his back” from Agent Diaz’s knee that was intended to keep him down in the prone position after he resisted being brought up to a standing position for escort. In fact, the post-arrest photographs taken by the BP agents showed no visible marks on the juvie dope smuggler whatsoever.

It should also be noted that of the dozen BP agents at the scene, nine gave sworn statements that they never witnessed Diaz do anything improper during his handling of the illegal smuggler. Two agents did testify at trial that “in their opinion” the takedown and ground stabilization by Diaz against the doper that Diaz was trying to control, was “unnecessary.” However, they also testified under cross-examination that they never had a hold of the drug smuggler’s arm, were not in a position to feel any resistive tension or any attempts by the suspect to pull away — facts that Diaz testified to.

The drug smuggler never told any BP agents at the time of his arrest that he was abused in any way by any BP agent. That complaint was only made to the Mexican Consulate after the illegal drug smuggler was whisked away after being granted safe passage back across the border to Mexico.

One can only guess what the jury’s findings might have been had they known about the “armed escort alert” received by the agents 24 hours earlier that escalated their awareness level, or the presence of the gang tats all over the second smugglers face, head, neck and body. Be that as it may, Agent Diaz is now doing time for what many feel was proper and reasonable force given the totality of the circumstances he faced. It was 0300 hours in a dark pecan field, and Diaz knew he was dealing with violent, dope-smuggling gang members, one of whom was potentially armed and still at large somewhere in that field.

Compounding Diaz’s predicament was the fact that his articulation skills were less than perfect. Rather than using the phrase “to the best of my recollection, I didn’t ask the doper where the marijuana was” his statement to IA, which was given some eight (8) months after the fact, contained the words “I did not ask the suspect where the marijuana was.” Two other agents heard him ask that question.

Diaz told me he never recalled asking the question. Perhaps his IA statement should have used that “never recalled” qualifier. As such, his conviction was not just for excessive force, but for lying to a federal agent about his actions. I could only testify that I visited that dark field late at night with Diaz and his two attorneys, and that arm twisting is a part of handcuffing, and ground stabilization is a trained and taught technique of suspect control. There was nothing I could say about the inaccurate statement Diaz made to his IA superiors other than some officers may recall seeing or hearing things differently than other officers at the scene of high-stress events.

As an aside, the now adult drug smuggler was granted full immunity for not only the illegal border crossing, but the possession of 50 pounds of marijuana he carried across the border. He was escorted back and forth no less than four times by our own government agents to testify against one of their own. And in an ironic twist of fate, after testifying under oath that he only felt “pressure” on his back and arms during the arrest, the illegal drug smuggler testified as a prosecution witness for the US Attorney’s Office that he “lied” to the BP agents when they originally asked him if he was treated roughly by any agent during the arrest.

The Bottom Line
Diaz is in prison in part because he “allegedly lied” to BP agents. The illegal drug smuggler gets total immunity for “admittedly lying” about the same incident.

Justice? You tell me.

About the author

Dave Grossi is a retired police lieutenant from upstate New York now residing in southwest Florida. A graduate of the State University of New York, Dave has served as a patrol officer, undercover narcotics investigator, detective, sergeant, and lieutenant. For 12 years, Dave was the lead instructor for the Calibre Press Street Survival Seminar. He has instructor credentials in virtually every force discipline and has testified both in the United States and abroad as an expert witness in use of force cases. He is a combat veteran of Vietnam, and a member of the Force Science Research Center.

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