Pubdate: Mon, 07 Aug 2000
Source: Houston Chronicle (TX)
Copyright: 2000 Houston Chronicle
Contact:  Viewpoints Editor, P.O. Box 4260 Houston, Texas 77210-4260
Fax: (713) 220-3575
Website: http://www.chron.com/
Forum: http://www.chron.com/content/hcitalk/index.html
Author: Mark Smith

FIGHTING CRIME WITH CRIME  

Rampant Use Of Informants in Drug Cases Coming Under Fire

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 eveything. 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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