A judge on Monday sentenced former mayor Octavio Garcia-Von Borstel to 3 1/2 years in prison followed by seven years of probation for operating a bribe-taking enterprise while in office, and for conducting a fraudulent business scheme in his private life.
During the sentencing hearing Monday at Pima County Superior Court in Tucson, defense lawyer Christoper Scileppi asked Judge Deborah Bernini to impose a super-mitigated prison sentence of two years, the minimum allowed by Garcia-Von Borstel’s plea deal with the state. Bernini agreed that there were mitigating factors in the case, including Garcia-Von Borstel’s lack of previous criminal history, his family and community support, and his acceptance of responsibility.
However, she also cited aggravating factors, including the fact that the 31-year-old former mayor’s crimes had had involved money, that he had accomplices, “and the fact that the defendant was a public servant and the offenses occurred related to that public service.”
Assistant Attorney General Mike Jette, who had asked the judge for an aggravated prison term of four years, told reporters after the hearing that he was happy with the outcome.
“It’s unfortunate that a public official has to be prosecuted and sentenced, but I feel very pleased that justice has been served here today,” he said.
Garcia-Von Borstel’s prison term came as a result of a no contest plea to illegally operating an enterprise, a charge that stemmed from a case in which he was accused of soliciting and accepting bribes from Nogales towing operator Ron Henderson in exchange for using his influence as mayor to help Henderson win contracts with the city.
The probation sentence came from a guilty plea in a separate case in which Garcia-Von Borstel and his father Octavio Garcia Suarez were charged with defrauding Western Union of more than $600,000.
Garcia Suarez, 60, also pleaded guilty in that case and Bernini is set to sentence him on Oct. 31 to between two and four years in prison followed by seven years of probation.
Garcia Suarez was present in the courtroom Monday and watched as his son was sentenced, fingerprinted, handcuffed and led out of the courtroom by sheriff’s deputies. His lawyer, Rafael Gallego, said afterward that Garcia Suarez and the approximately 10 other family members and supporters who attended the hearing were “taken aback” by the 3.5-year prison sentence.
“They’re in shock,” he said.
As part of their plea deals, Garcia-Von Borstel and Garcia Suarez must pay Western Union a total of $617,895 in restitution; Garcia Suarez must also reimburse Southeastern Arizona Federal Credit Union $63,427 in connection with a separate bad checks case.
'Full of gremlins'
During arguments presented to the judge prior to sentencing, Jette said the Garcia-Von Borstel case had helped perpetuate stereotypes about crooked politics in Nogales.
“There has always been this rumor, this innuendo, about Nogales being full of gremlins taking money and taking opportunities to the nth degree, and taking advantage of their (connections) and of their positions,” he said. “This case, unfortunately, has provided us an example of that.”
But Scileppi argued that aside from his arrest and conviction, Garcia-Von Borstel had been a good public servant. “[During] his term as mayor, judge, some very, very, very positive things happened in the City of Nogales,” he said.
As examples, he said, Garcia-Von Borstel had played an important role in securing the $200-million renovation of the Mariposa Port of Entry, as well as the new wastewater treatment plant in Rio Rico. Scileppi also credited Garcia-Von Borstel for helping to build the Camp Little and Meadow Hills parks, and for securing the city’s financial footing enough to gain a Triple-A rating from Standard & Poor’s.
In addition, Scileppi cited Garcia-Von Borstel’s “great support in the community, still, present to this day.” He pointed to the cluster friends and family gathered in the courtroom, but added that the ex-mayor had also discouraged the “many, many others who were going to show up,” in order to keep the hearing a low-key affair.
Part of the reason that Garcia-Von Borstel had accepted the plea deal, Scileppi said, was out of consideration for his family and community.
“It is his intent to spare the citizens of Nogales and the citizens of Santa Cruz County the expense, and frankly, the potential circus-like environment that would have followed a trial,” he said. “He wanted to take responsibility, but he also wanted to fast-track this so he could spare the community of that.”
Bernini presided over Garcia-Von Borstel's cases as a visiting judge after all Santa Cruz County judges recused themselves. If the case had gone to trial, it would have been tried in Nogales in front of a jury of Santa Cruz County residents.
When Scileppi finished, Garcia-Von Borstel, dressed in a navy blue suit and bright green tie, stood and addressed the judge.
“I am taking full responsibility and I’m here before you to face the consequences for my poor judgment,” he said. “I feel extremely remorseful [for] the pain and hurt that this has caused my family [and] my community. So I’m here to face whatever you see as fair under the circumstances, and I apologize to this court.”
His voice was steady as he spoke, and he maintained his composure throughout the proceedings – even as he was being handcuffed and family members began to cry in gallery behind him. He did not look back as he was led out of the courtroom.
Barrett Marson, spokesman for the Arizona Department of Corrections, said earlier Monday that it was too soon to say which of the state’s minimum, medium or maximum security facilities Garcia-Von Borstel would be assigned to. Once he is turned over to ADC by the Pima County Sheriff’s Office, prison officials will conduct an intake assessment to determine where to house him.
“It’s going to depend on his needs, his custody level,” Marson said, adding that the process could take a few days or up to a week.
The former mayor will have to serve 85 percent of his prison term before he is eligible for release. The judge ordered that he serve his subsequent probation in Santa Cruz County.
Garcia-Von Borstel was arrested at City Hall on Sept. 28, 2010 following a five-month FBI investigation in which Henderson, the towing operator, wore a wire to record his alleged bribery negotiations with the then-mayor. Garcia Suarez was arrested that same day at the family produce import business on Terrace Avenue.
Speaking at Monday’s hearing, Jette told the judge that he wanted to clarify, for the record, Henderson’s role in the case. Henderson was never the target of any investigation, and did not turn state’s witness to avoid his own prosecution, he said.
“(Henderson) did what citizens of Nogales are supposed to do,” he said. “He came forward and helped the FBI in their investigation.”
Following his arrest, Garcia-Von Borstel was arraigned on a total of nine felony charges, including illegally conducting an enterprise, money laundering, bribery, fraud and conflict of interest. Garcia Suarez was charged with a total of four offenses, including fraud and money laundering.
The men spent the next 11 days in the Santa Cruz County jail before Bernini lowered their bond requirements from $250,000 to $25,000 for Garcia-Von Borstel and $10,000 for Garcia Suarez. The men posted surety bonds on Oct. 8, 2010 and Garcia-Von Borstel, ignoring calls for his resignation, returned to office to serve out his term as mayor, which officially ended Jan. 3, 2011.
Then on April 7, Garcia-Von Borstel and his former assistant Victor Mendez were indicted by a Pima County grand jury on charges that they had presented forged documents to American Southwest Credit Union while applying for a loan to purchase a Ford-150 pickup truck in late 2009 and early 2010. The four charges against Garcia-Von Borstel were dropped by the state as the result of a plea deal in the bribery/fraud cases, which Bernini accepted on June 27. A hearing on the charges against Mendez is set for Sept. 6.
In arguing Monday for an aggravated sentence, Jette said that the three cases against Garcia-Von Borstel – the Henderson bribery scam, the Western Union fraud, and the truck loan case – were just part of the FBI’s investigation into the former mayor.
“This defendant did far more than just [these] three cases, your honor,” Jette said. “Far more.”
However, as part of the plea agreement, the state will not pursue criminal charges against Garcia-Von Borstel as a result of the other investigations.
Those investigations, Jette told the judge, included possible credit card abuse and extortion of other victims in addition to Henderson.