Pubdate: Sun, 06 Aug 2000
Source: Houston Chronicle (TX)
Copyright: 2000 Houston Chronicle
Contact:  (713) 220-3575
Address: Viewpoints Editor, P.O. Box 4260 Houston, Texas 77210-4260
Website: http://www.chron.com/
Forum: http://www.chron.com/content/hcitalk/index.html
Author: Mark Smith

RAMPANT USE OF INFORMANTS IN DRUG CASES COMING UNDER FIRE

Fighting Crime With Crime

Arrested in 1998 for smuggling a load of marijuana into Florida, Jimmie
Ellard thought he had the perfect cover: He was working for the Drug
Enforcement Administration.

Since his release from prison in 1996, after serving six years for marijuana
smuggling, he said, agents had let him smuggle pot into the country so they
could bust his customers.

But DEA agents denied everything. Ellard, facing 40 years in prison, then
presented in court a tape of an agent telling him "we really can't know" how
the drugs he smuggled came into the country.

The smuggling charge was dropped. The DEA now is investigating to determine
whether the agents tried to conceal the origin of a drug shipment to
circumvent international agreements and federal guidelines.

Perhaps surprisingly, Ellard, now 53, has declined to testify against them.

"I have worked with many agencies, and they all in some way or another
disregard some of the guidelines at one time or another," said Ellard, a
former Fort Bend County sheriff's deputy who has admitted to smuggling more
than 25 tons of cocaine in his career. "If they didn't, they would never
make a case."

That's the problem, critics say, citing several high-profile drug cases in
which federal agents have paid informants exorbitant fees, allowed them to
lie under oath, ignored illegal activities, kept secret their deals for tips
and testimony, and employed criminals who were arguably more dangerous than
the targets themselves.

Law enforcement officials say abuses are relatively few and are far
outnumbered by the successful cases made against increasingly sophisticated
organized crime groups, which are too vigilant and deadly to risk sending in
agents undercover.

"Every time we take down a big criminal organization, they debrief each
other and learn a little bit," said Steven Hooper, associate special agent
in charge for the U.S. Customs Service in Houston. "It gets tougher and
tougher to build cases."

Dealing With Sleaze

Critics, however, charge that in their zeal to run up arrest numbers and
seize more and more property, agents often deal with sleazy people who will
say and do anything to make a score.

"Their possible misuse represents the greatest threat to the integrity of
the criminal justice system," said Judge Stephen Trott of the 9th U.S.
Circuit Court of Appeals, a former head of the Justice Department's Criminal
Division in the Reagan administration. "Too often ... informers are out of
control."

Informants cost money, but exactly how much is impossible to document. In
the last three years, federal informants were paid at least $260 million by
the DEA, Customs Service, Internal Revenue Service, State Department, U.S.
Marshal's Service, Secret Service and FBI.

The DEA acknowledges having twice as many documented informants (4,500) as
field agents. But the FBI, Customs Service and the Treasury Department's
Bureau of Alcohol, Tobacco and Firearms declined to even estimate the number
they handle.

"The care and feeding of informants is big business in the U.S. government,"
said William Moffitt, president of the National Association of Criminal
Defense Lawyers. "It's like the CIA's `black budget.' Obviously, no one
really wants to keep the exact number of informants and amount paid them,
because most intelligent people know that the system is being distorted by
all the selling of information."

But without help on the inside, say federal agents, crime rings are
difficult, if not impossible, to crack.

"The biggest and most successful cases are always made by informants," said
Customs' Hooper: "It shortcuts so much time and effort."

Such shortcuts, say two former agents, are increasingly the problem, often
replacing old-fashioned undercover and surveillance work while allowing
overeager agents to be easily manipulated into believing any kind of tip.

"Agents get promoted by the number of cases they make, the amount of drugs
they seize and the number of informants they handle," said former DEA agent
Celerino Castillo. "There is a struggle by agents to get as many informants
as possible, to make as many cases as possible."

Michael Levine, a retired DEA agent who worked with hundreds of informants
during his 25-year career, said they were crucial to most of his successful
cases but are increasingly being used in a numbers game.

"The way you get statistics is by making a lot of cases," Levine said. "You
need informants to do that. ... It has put the whole criminal justice system
often in the hands of sociopathic criminals."

Hero Or Liar?

Few informants made more cases than Andrew Chambers, whom the DEA paid more
than $2.2 million to troll dozens of cities, dangling tempting drug deals
before gullible buyers.

His work enabled the DEA to seize 1.5 tons of cocaine and imprison 475
people on drug and other crimes, more than 50 in the Houston, Beaumont and
Port Arthur area. The DEA says he's a hero who has repeatedly risked his
life to help imprison hundreds of criminals, some of whom are now serving
life sentences.

But in at least 16 cases, Chambers was found to have lied on the stand about
his arrest record, education, aliases and failure to pay income tax on his
DEA earnings. At least a dozen people are now appealing their sentences, and
prosecutors have dropped drug charges against 14 others in pending cases
rather than call Chambers to the stand.

DEA operations chief Richard Fiano said Chambers has been "deactivated" as
an informant, though he stressed it has never been proved that Chambers lied
about any material facts, only about his background.

Fiano said internal investigators are trying to determine when agents became
aware Chambers was lying about his past and whether they intentionally kept
it to themselves.

The investigation already has found that the 21 domestic field DEA offices
often failed to share such information, even with the prosecutors handling
their cases. Agents are now required to send unfavorable evidence about
informants to headquarters.

"If DEA didn't know about Chambers' past, it is indicative of a poorly run
agency with a disregard for the constitutional rights of citizens," said H.
Dean Steward, an Orange County, Calif., defense attorney whose client is
serving a life sentence. "If the agency did know, it would be a clear
violation of law and every one of the cases should be dismissed."

Chief DEA spokesman Terry Parham, however, says Chambers was never the sole
element of proof in any case. "No one is ever charged with a crime based on
mere uncorroborated information provided from a confidential source," he
said. " ... It requires investigators like us to ensure that the case will
hold up under the scrutiny of prosecutors and a trial."

But scrutiny is often limited, defense attorneys say, because the truth
about deals with informants might not emerge for years.

'Motivated By Money'

It wasn't until nearly three years after his October 1996 conviction that
attorneys for drug kingpin Juan Garcia Abrego learned that a former Mexican
police commander had been paid $1 million for his undercover work and
testimony.

The payment to Carlos Resendez Bertolocci only came to light when he
complained that federal officials had not paid him a promised second $1
million. Abrego attorneys then obtained bank records showing an FBI agent
had bought a $1 million cashier's check payable to Resendez Bertolocci.

Prosecutors contend that any money paid to Resendez Bertolucci was a reward
for helping in Garcia Abrego's capture, not to fulfill a promise made before
trial for testimony.

Based in large part on that testimony, Garcia Abrego, charged with smuggling
nearly 200 tons of cocaine and 20 tons of marijuana across the U.S. border
since the early 1980s, was sentenced to 11 life terms for drug trafficking,
conspiracy, money laundering and operating a continual criminal enterprise.

Resendez Bertolocci testified he had arranged Garcia Abrego's capture and
expected no reward or financial gain in return for his assistance, except
"security" for himself and his family.

Defense attorneys say records and his own statements belie that.

"Resendez was motivated by money," said Kent Schaffer, a Houston attorney
seeking a new trial for Garcia Abrego. "If he will take on the entire U.S.
government for $1 million, what did he say in the Garcia Abrego case for the
promised $2 million?"

Prosecutors, however, say Schaffer should not claim to be shocked that
Resendez Bertolocci had been paid.

"The defense knew that up to a $2 million reward was possible," Houston
federal prosecutor Ken Magidson said. "He had not applied for any reward at
the time of trial, but he does have a right to change his mind."

Schaffer, however, said any reward should be paid -- and disclosed -- prior
to trial, and "then it wouldn't be contingent on the testimony."

Mendoza's Big Payday

In one of the biggest known paydays yet, Fred Mendoza netted $2.2 million in
Operation Casablanca, a U.S.-Mexican money-laundering sting that led to the
seizure of $100 million in cash, four tons of marijuana and two tons of
cocaine. Indictments were returned against 112 defendants, including 28
bankers. Forty-one have been convicted or pleaded guilty, three have been
acquitted, and the rest are fugitives.

And Mendoza is in line to get another $7.5 million from the Customs Service,
depending on the results of forfeiture proceedings and spinoff
investigations.

"The more money Mendoza brought in, the more he earned, and in this case it
was nearly unfathomable," said Michael Pancer, a San Diego attorney whose
client was acquitted after the sting. " ... He had an economic motive to
entrap and get people involved in Operation Casablanca. And in this case you
are not dealing with a federal agent who has taken an oath; you are dealing
with a lowlife."

Federal prosecutor Duane Lyons said customs made the agreement with Mendoza
in 1995, at the start of the 2 1/2-year investigation, before anyone could
predict its success.

"Fred Mendoza got paid a lot of money, but the amount of money he got paid
was based on the outcome of events prior to trial," Lyons said. " ... The
substance of the agreement was not uncommon; it was the dollar amount."

Customs Service Commissioner Raymond Kelly said lucrative payments are
sometimes necessary to get high-level people to risk informing. Asked
specifically about the fee paid to Mendoza, he replied, "I can't say I'm 100
percent behind the system, but that's the system we have."

Turning A Blind Eye

Sometimes, informants get no financial reward but are compensated by inside
information and a blind eye toward their activities.

In Boston, agent John Connolly and the local FBI office had been lauded for
dismantling the New England Mafia and sending more than 40 mobsters to jail
over the last three decades.

The accolades ended last September, when hitman John Martorano admitted that
in 1981 he had murdered, among others, a Tulsa, Okla., man on the orders of
James "Whitey" Bulger and his top lieutenant, Stephen Flemmi.

It turned out that agents and the two mobsters had a cozy two-decade
relationship. Agents entertained the two in their homes and exchanged gifts
with them. Supervisory agent John Morris has admitted getting $7,000 cash
from Bulger, whom he kept abreast of agency activities in return for his
cooperation.

Bulger and Flemmi were recruited to inform on rivals to their Winter Hill
Gang. Bulger is still a fugitive, but Flemmi, jailed since 1995, has said
the FBI permitted them to commit various crimes short of murder for more
than 15 years.

The two have been charged with racketeering and are suspects in several
homicides -- crimes some say FBI agents may have ignored or even actively
covered up.

Connolly, now retired, was charged in December with conspiring to protect
Bulger and Flemmi. Connolly contends he is a scapegoat for contradictory
guidelines and supervisory decisions.

"These guys we recruited were gangsters, and the FBI knew it," Connolly said
in interview. " ... I absolutely suspected they were violent, though they
would never tell me about any violent acts. You don't get to their position
and not be violent."

He said Bulger and Flemmi were warned not to commit any violent crimes, but
his supervisor, Morris, let them continue loan-sharking and gambling
operations. Prohibiting such activities, he says, would have denied them
access to the mob's inner workings.

"You can look at this deal in the year 2000 and say maybe we shouldn't have
done it," said Connolly, who previously had been lauded for playing a key
role in dismantling the Boston-area Mafia. " ... I was playing by rules that
didn't even make any sense according to my superiors."

U.S. District Judge Mark Wolf found last year that several Boston agents and
supervisors "ignored or treated as bureaucratic nuisance" guidelines in
handling Bulger and Flemmi. A least 18 FBI supervisors and agents have been
found to have violated the law, regulations and/or Justice Department
guidelines.

The DEA last year had to change its informant-evaluation guidelines after
settling a case involving a child molester who abused two boys while working
as an agency informant.

Considered Untreatable

In 1995, after being arrested on marijuana distribution charges, Michael
Robinson was facing 10 years to life in prison. To avoid prosecution, he
agreed to inform for a DEA task force in Albuquerque, N.M.

At the time, the DEA knew that in a 1986 psychological evaluation Robinson
had admitted to 200 acts of pedophilia, had been convicted of it three times
and that records showed he was considered untreatable. Nonetheless, the task
force enrolled him as an informant and allowed him to live within two blocks
of two middle schools.

In a November 1998 deposition, Robinson said he had repeatedly warned his
handlers that he was "stressed out" -- a condition that aggravated his
pedophilia -- and asked for time away from undercover work but was told to
"hold on."

Hours after secretly taping a conversation with a suspected drug dealer,
Robinson abducted two boys -- 10 and 11 years of age -- and raped them. He
is now serving a 39-year sentence for marijuana trafficking and a life
sentence for kidnapping and sexual assault.

"I don't know how you can supervise a pedophile as an informant," said Sana
Louis, whose son was molested by Robinson on Sept. 12, 1995. "The task force
was investigating a situation where drug dealers were killing other drug
dealers. I don't think my son should be sacrificed for that." Federal
officials agreed this year to a reported $250,000 settlement of a lawsuit
brought by the Louis family. The DEA now requires agents to include risk
assessments on informants with violent backgrounds.

Safeguards Needed

Much of the criticism against informant use has come from defense attorneys,
who some scholars say have forced law enforcement agencies to use informants
more and more because of legal restrictions on searches, questioning of
suspects and wiretaps.

"The fact that law enforcement has to rely on informants is primarily due to
our insistence on limiting other methods of investigation," said Paul H.
Robinson, a professor of criminal law at Northwestern University and a
former federal prosecutor. "Defense attorneys criticize the use of
informants, but they don't have an alternative to keep the effectiveness of
law enforcement at its current level or improve it."

Retired FBI agent R. Lindley DeVecchio, who was cleared in the mid-'90s of
passing information to a top-echelon informant in the New York Mafia, says
controversies will have a chilling effect on agents' willingness to use
informants.

"A lot of people think that if you are talking to a bad guy, you should put
them in jail," DeVecchio said. "It doesn't mean you won't put them in jail.
But the reality is if you need firsthand information to break up criminal
organizations, you have to get information from the inside, and I don't know
any other way to do that."

Critics, however, have proposed requiring that informant testimony be
corroborated with other evidence and that they be monitored for
trustworthiness, including periodic lie-detector tests.

"There need to be safeguards in the role informants play in the criminal
justice system," said Eric Sterling, a former general counsel to the U.S.
House Judiciary Committee. "Informant use is such an integral part of the
justice system, yet so ripe for abuse."
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