Beating the Rap

A Border Patrol agent and whistleblower is acquitted of charges he claims were retaliation for speaking out

Following a pricey March show-trial, Border Patrol Agent Ephraim Cruz walked out a free man. That verdict likely proved a colossal embarrassment to federal officials, who prefer to see their whistleblowers walking the plank.

The prosecution of Cruz dates to July 2005, when he was indicted on charges of smuggling an undocumented woman through the Douglas port of entry. But the persecution of this agent reaches back to March 2004, when he alerted his supervisors that detainees in the roomy new Douglas Border Patrol station were being shoehorned into very overcrowded cells--even though other nearby cells remained empty (see "Dangerous Liaisons," Currents, Jan. 12, 2006).

He alleged that immigrants--including pregnant women, children and the elderly--sometimes weren't fed for up to 20 hours. Cruz said that detainees had been abused and subjected to the "chair," in which people are forced into a painful chair-like position, with their backs pressed against the wall for long periods of time.

Searches of immigrants were haphazard, he said, and he snapped Polaroids of detainees displaying their overlooked watches, belts and makeup kits. Knives and guns have been found in cells, he claimed, placing both detainees and agents at risk.

Little surprise that the Border Patrol didn't take kindly to these charges--or the fact that an agent was actually making them. Superiors chastised Cruz and largely ignored his allegations. They also fiddled with the records, turning his trail of stellar evaluations into a string of stinging critiques.

Then came the bust, for transporting another agent's girlfriend across the border. Maria Terrazas was a regular on the Border Patrol social scene; Cruz testified he thought she had legal status in the United States.

Cracks in the government's case became clear early on. Cruz was offered a deal in which he'd plead guilty to one felony count and spend three months in jail. He refused. Right before the trial began, Assistant U.S. Attorney Cynthia Woods also dropped two of the charges, related to harboring an illegal alien and failing to report Terrazas' entry into the United States.

But the smuggling charge remained. And on March 9, a federal jury sacked that count as well. "It was a feeling of relief, that's for sure," Cruz now says. "I always found these to be ridiculous charges."

He says the government stumbled in its zeal to muzzle him, ultimately piecing together a weak case. "The Border Patrol pounced on me too early. I knew retaliation was coming, but it was a misstep on their part to jump on me when they did."

Then came credibility problems with key witnesses. Prime among them was Agent Oscar Cornejo, who rode shotgun with Cruz on that cold winter night when they picked up Terrazas. Notably, Cornejo wasn't charged with transporting the woman.

But his checkered past includes lying to officers during a drunk-driving incident. According to Cruz, Cornejo also lied about other things. "I think it's only because of this case (and Cornejo's testimony for the prosecution) that he wasn't terminated by the Border Patrol."

Indeed, all the factors point to Cruz's original claims of being scapegoated for questioning detainee treatment. The Border Patrol denies mistreatment of illegal immigrants in its facilities, and denies targeting Cruz. But in an earlier report, even U.S. District Judge Frank Zapata noted that Cruz appeared to be the focus of special attention.

Roger Sigal is Cruz's attorney. Last fall, he asked for a dismissal on the grounds that Cruz was being selectively prosecuted. Zapata rejected the motion, but the judge's subsequent report contained many references to unfair treatment of Cruz.

Objecting to the decision, Sigal cited Zapata's "rather decisive declaration that 'the prosecution singles out a whistle-blower.' ... In no uncertain terms, the Report concludes that 'the end result is selective prosecution.' ... The Report further found that Cruz was 'subject to a retaliatory hostile work environment because of his activities in complaining about perceived deficiencies in the performance of the Border Patrol in the Douglas area.'"

In the end, the price tag for this long legal farce is a muddle of man hours, paperwork and taxpayer-funded stress. For its part, the U.S. Attorney's Office has little to offer on the verdict or its cost.

"All I would have to say is that we respect the jury's decision," says spokesman Wyn Hornbuckle.

Nor is the Border Patrol's Tucson Sector expounding much on the outcome. "That's just the system doing its job--doing its duty as far as determining whether someone is guilty or innocent," says spokesman Chuy Rodriguez.

However, without providing details, Rodriguez hints that the Border Patrol isn't quite done with Agent Cruz. "If he's found innocent, OK, but they're still looking through the administrative process as well," the spokesman says. "I'm not sure what they're looking at. But they are going to make sure that no administrative violations were breached in whatever he was doing."

Nor is Agent Cruz done with the Border Patrol. His next task is getting his job back, and he's going to press the detainee issue with Southern Arizona's congressional delegation. Even today, Border Patrol practices "do not coincide with the written policies," Cruz says. "That's their culture--they'll write policies for immigrant-rights groups, for the media, for the public. But what they're doing quietly behind the scenes is my concern."

He also wants to be an example for younger agents. That's why calls the jury verdict "a win for the Border Patrol, for two reasons. One, a jury of my peers restored my faith in the American justice system. And two, agents in Douglas were seeing me being made an example of, for reporting internal abuses--for standing up for what's right--and so they became scared. It shut them down.

"Agents are pushed to have integrity, as long as integrity is not embarrassing the Border Patrol. Hopefully, this is an example to junior agents who see their peers engaged in wrongdoing ... that they'll report it. Yeah, they might have to go through the ringer like I did. But in the end, the truth will prevail."

And maybe they won't be put through that ringer. "Look at how much money (the Border Patrol) spent pursuing me," Cruz says, "how much energy and creative time was spent on one person. I told them in my initial memo, 'Here's the problem, and here's the solution.' We could have addressed this a long time ago, and all of us (could have) moved on and saved the agency a lot of embarrassment and funds and its reputation. But they chose a different course."

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