nogales

Prosecutor follows dropped charges with 'Brady letter'

Print
Font Size:
Default font size
Larger font size

Posted: Friday, September 20, 2013 6:00 am

Late in the prosecution of former City of Nogales employee Eduardo Bojorquez-Obeso on drug-smuggling charges, “several issues” arose that led prosecutors to dismiss the case, according to a letter from the County Attorney’s Office.

One of those issues was that the chief investigating agent, Eduardo Cota of U.S. Immigration and Customs Enforcement (ICE), waited until August to disclose a surveillance video that allegedly showed Bojorquez committing a marijuana-smuggling offense in 2009.

“This late disclosure, if not intentional, was at minimum grossly negligent on Agent Cota’s part,” Chief Deputy County Attorney Liliana Ortega wrote to Eric Balliet, assistant special agent in charge of ICE Homeland Security Investigations at the agency’s office in Rio Rico.

“More disturbing was the content of the video,” Ortega wrote. “The video directly contradicted statements that Agent Cota made to the prosecutor, to defense counsel, and in the agent’s own reports. The agent also omitted vital information from the reports and from his discussions with the prosecutor that would have impacted the filing of charges against Mr. Bojorquez.”

The letter to Balliet, dated Sept. 16 and obtained by the Nogales International through a public records request, came two weeks after Deputy County Attorney Vanessa Cartwright, citing “new information,” asked Judge James A. Soto to dismiss all seven felony drug charges against Bojorquez. His trial had been set to begin on Oct. 1.

The County Attorney’s Office has declined to discuss the specifics of the “new information,” but in her letter to Balliet, as well as another letter she sent to 28 local attorneys this week, Ortega pins the blame squarely on Cota, who led the investigation of an alleged drug-smuggling conspiracy involving employees at the city’s Public Works Department. That investigation has already led to the conviction of two of Bojorquez’s co-defendants: former streets department supervisor Fernando Islas, Jr. and former streets worker Francisco Rene Fuentes, both of whom pleaded guilty to one Class 4 felony offense.

“This letter is to notify you that our office has reason to believe that ICE Agent Eduardo Cota made misrepresentations and material omissions to the prosecutor, defense counsel, and in his report in the case of State v. Eduardo Bojorquez-Obeso,” reads Ortega’s letter to the 28 lawyers, also dated Sept. 16. A copy of the document was given to the NI by one of the lawyers.

“This information impacts the agent’s credibility, and thus, we are promptly disclosing this to you pursuant to our obligations outlined in Brady v. Maryland, the Arizona Rules of Criminal Procedure, and our professional and ethical obligations,” it says.

Brady v. Maryland was a landmark 1963 case in which the U.S. Supreme Court affirmed that prosecutors and other law enforcement agencies must disclose favorable evidence to the defense before trial if that evidence is relevant to questions of guilt or punishment.

In her letter to Balliet, Ortega wrote: “Our office has grave concerns not only as to the facts of the case, but also about Agent Cota’s credibility. As such, we feel this office can no longer prosecute any cases involving Agent Cota.”

Reached by telephone Tuesday, Cota declined to comment. ICE Spokeswoman Amber Cargile, citing an internal review that is already under way, said she could not speak about specifics, “but we are reviewing the management of the case and will determine appropriate next steps based on the results of the assessment.”

The others

After co-defendant Islas pleaded guilty in the case, Judge Soto sentenced him on Jan. 14 to three years of probation, including 90 days in jail. A week later, Judge Anna Montoya-Paez sentenced Fuentes to four years probation, with 180 days in jail.

According to court documents, an ICE surveillance camera reportedly captured Islas and Fuentes outside Bojorquez’s house on Sept. 29, 2009, observing or participating in an effort to hollow out sheets of drywall for use as a marijuana-smuggling compartment.

In an interview Tuesday, after Ortega issued her letters, County Attorney George Silva said the video that contributed to the dismissal of the charges against Bojorquez was from a separate alleged incident on Oct. 6, 2009.

“The major issue for us is the video involving Bojorquez and only Bojorquez,” Silva said.

Silva declined to offer more detail on how that video might have contradicted Cota’s statements to lawyers, or to discuss the “vital information” that Cota allegedly omitted. Because the agent is outside his chain of command, Silva said, he wants to “tread lightly” in terms of the details.

“The last thing we want to do is hurt our relationship with ICE,” he said, adding: “This particular incident shouldn’t affect that relationship.”

Even if the video in question did not involve Islas and Fuentes, Silva acknowledged that his office’s impeachment of Cota’s credibility could raise concerns with Fuentes’ and Islas’ lawyers. “The ball is now in defense counsel’s court,” he said Tuesday.

The next day, Matthew Davidson, lawyer for Islas, filed a motion at Santa Cruz County Superior Court asking Soto to either set aside and dismiss Islas’ conviction, or grant him a trial. The motion cited Brady v. Maryland, as well as Ortega’s letters questioning Cota’s credibility.

“Part of his decision-making to plead guilty, and that of his lawyer, was assessing the credibility of Cota’s potential testimony,” Davidson wrote, noting that Islas would have faced mandatory prison time if he had been found guilty at trial.

Cota’s potential testimony was especially important because Islas was never arrested in possession of any drugs, and a surveillance video that reportedly showed the conspirators building a drug-smuggling compartment showed only that Islas was present at the scene, not that he participated in the construction, Davidson wrote.

“The bulk of the evidence against (Islas) was delineated in reports authored by (Special Agent) Cota. Mr. Islas disputed many of the assertions in those reports,” he wrote.

Among the disputed evidence was a reference to an alleged “quasi-confession” from Islas that Cota never recorded.

“In the last few days (Special Agent) Cota’s credibility has come into question to say the least,” Davidson wrote, adding that the charges against Bojorquez that were dismissed included a count that Islas was allegedly involved in.

Fuentes’ lawyer, Ramiro Flores, was on vacation this week and could not immediately be reached for comment.

The letter

The so-called “Brady letter” that the County Attorney’s Office sent to lawyers this week about Cota is not an entirely unusual occurrence.

In December 2010, after Judge Montoya-Paez threw out seven felony convictions against Alan Woods of Patagonia following the discovery of misrepresentations by the Patagonia Marshal’s Office, Ortega sent a letter to local lawyers notifying them that the judge had found then-Marshal Ed Dobbertin and already ex-Deputy Marshal Dale Stevenson in contempt.

And according to Lyle Mann, executive director of AZPOST, the agency that certifies and sets standards for police officers in Arizona, there were recently more than 200 officers on a “Brady list” in Maricopa County as a result of disciplinary or credibility issues.

Having your name on a Brady list or having a Brady letter in your file doesn’t itself mean that you are finished as a law enforcement officer, Mann said. It just means that a prosecutor has to let the defense know that the veracity of your testimony could be called into question.

“Just because they told the defense attorney doesn’t really mean anything,” he said. “If the defense attorney wants to use that information, they have to ask the judge if they can do that, and a prosecutor can object.

“The judge has to decide whether that’s applicable in that particular case and situation,” Mann said. “It’s not a slam dunk.”

However, a letter that impugns someone’s general credibility, like the one about Cota, can have widespread applicability.

“Any time he stands up there and says, ‘I swear to tell the truth,’ somebody’s going to question whether or not he’s really telling the truth,” Mann said.

And while a Brady letter itself isn’t enough to get an officer’s AZPOST certification revoked, the circumstances that led to the letter, or the potential fallout from it, could cost the officer’s job. In the Woods case, after Silva told the Patagonia Town Council that the County Attorney’s Office had concerns about working with Dobbertin in the future, the council voted 3-2 to fire him.

Past cases

Jason Kreag, an expert on criminal law at the University of Arizona’s James E. Rogers College of Law, said he applauds the County Attorney’s Office for disclosing its problems with Cota.

However, the disclosure shouldn’t only have implications for future cases involving Cota, he said.

“I suspect that the County Attorney’s Office thinks that in sending this letter that they were notifying people who had been convicted before,” Kreag said. “But I would urge them to take even more proactive steps to see which cases they’ve used him in in the past and if his testimony in those cases was reliable, and if it wasn’t, if that would have mattered.”

In fact, there are likely to be numerous cases from the past in which the County Attorney’s Office used Cota as a witness. Prior to joining ICE, he worked as a police officer, detective, sergeant and lieutenant for the Nogales Police Department from Oct. 25, 1993 to June 4, 2000, according to the city’s Human Resource Department. Cota also worked as a Santa Cruz County sheriff’s deputy from 1989 to 1993.

“There may be others that file post-conviction petitions as a result of this,” Kreag said, adding: “But it’s still an uphill battle to win those.”

Speaking Tuesday of the potential fallout from the dismissal of the charges against Bojorquez and the subsequent Brady letter, Silva said: “We don’t know how this is going to pan out,” adding: “We will do what we have to do to make sure that justice is done in this matter.”