The firing of an ICE special agent by DHS Attaché Alonzo Pena that back-fired

Introduction

I reviewed the Gilberto M. Rodriguez v. Department of Homeland Security, MSPB Case No. DA-0752-07-0177-I-1 decided on April 10, 2008 and wanted to contribute with my evaluation an assessment of how ICE’s Alonzo Pena administered discipline on this case that I am sure echoes several others. The Immigration & Customs Enforcement (ICE) special agent in charge (SAC) involved in his case was Alonzo Pena, who was then the ICE-SAC San Antonio, TX. He is the pre-selected ICE’s Senior Executive Service (SES) management official who allegedly was appointed to be the DHS Attaché assigned to Mexico City. Pena was to commence his new job on or about April 4, 2008. Pena’s last known position was that of the ICE’s SAC for the entire State of Arizona, where he spent barely 14 months repairing the damage that his predecessor SAC (SES) Roberto Medina caused while in Arizona.

There is one problem though: where is DHS Attache Alonzo Pena? My confidential sources tell me that he is still in Arizona. Since I cannot directly call ICE’s designated press officer myself to verify Alonzo Pena’s whereabouts due to my stranded relations with ICE, even though I am a writer and news reporter for Narco News, I can only assume that Pena’s delay in relocating to Mexico City, has to do with the Gilberto Mr. Rodriguez, who was wrongfully terminated from his ICE special agent position by Alonzo Pena. If it is for a different reason, any ICE employee can write a comment following this story.

The following summary is a redacted and edited copy of the original MSPB’s appeals decision issued on April 10, 2008. For the review of the actual MSPB’s appeal case decision, please refer to the below referenced MSPB case decision. Again, the events in question took place when Alonzo Pena was the ICE San Antonio’s SAC.

Summary of the MSPB’s case of Gilberto M. Rodriguez v. Department of Homeland Security

On September 19, 2006, the agency proposed the appellant’s removal from his senior criminal investigator position in the Austin, Texas office of the agency’s Immigration and Customs Enforcement (ICE) branch on charges of falsifying an official government document and making false statements. The agency’s first charge alleged that on August 2, 2005, while processing Miguel Rangel-Martinez (Rangel), an undocumented alien in the agency’s custody who had been deported on an earlier occasion, the appellant falsified agency form I-213 by indicating that Assistant United States Attorney (AUSA) Dan Mills had declined Rangel’s prosecution. The second charge alleged that the appellant made two false statements that Mills had declined Rangel’s prosecution, one on August 2, 2005, to his acting supervisor, Kevin Duberstein, and one on February 15, 2006, to Brian Collentine, an investigator for ICE’s Office of Professional Responsibility. The appellant submitted a written reply to the deciding official, Alonzo Pena, in which the appellant contrasted his “clear denial of the charges in his affidavit” with Duberstein’s February 2, 2006 affidavit recounting the events of August 2 and 3, 2005, and Collentine’s April 20, 2006 sworn statement recounting his January 30, 2006 interview of Mills. On January 4, 2007, Pena issued his decision sustaining the agency’s charges against the appellant and removing him effective January 6, 2007. http://www.permerica.com/Rodriguez_v_DHS.pdf

The Investigation of Immigration and Drug Smuggling Cases

In order to understand the processing of immigration cases involving illegal aliens suspected of having a criminal court conviction history and being the “ICE” duty special agent on call, you must first need to have the training and experience of being either a former U.S. Border Patrol (USBP) agent, Legacy Immigration & Naturalization Service (INS) special agent, or Legacy U.S. Customs Service’s Office of Investigations’ (USCS) special agent.

Often, when an ICE agent gets a duty call, especially on weekends or night-time, the duty agent if confronted with a suspected illegal alien, a drug smuggler or trafficker (USBP check-points) with a print-out “rap-sheet” (criminal history) only, the agent cannot relied his/her decision whether to conclude that the alien or a drug smuggler-trafficker suspect has been conclusively convicted of a criminal offense. For the most part, those “rap-sheets” are not updated or do not have the necessary accurate information needed to brief an Assistant U.S. Attorney (AUSA), or “special prosecutor” to obtain an approval to formally charge anybody with a federal crime.

Normally, the duty agent is handling (processing) two separate cases at the same time. I personally have experienced this fact at the Calexico, CA, Andrade, CA, or San Luis, AZ ports of entry. When the duty agent attempts to make contact with the duty AUSA during non-office hours, it is my experience that if the duty agent cannot contact and speak with the duty AUSA, he/she will go down the list of other alternate AUSAs. If lucky, the duty agent will finally speak with an AUSA who based on only a “rap-sheet” more likely than not will decline formal prosecution in lieu of administratively processing the alien. In most cases, the AUSA who answered the duty call will not remember the name of the alien or the duty agent, especially if the AUSA was in bed sleeping. It is also my experience that as a “duty agent” almost never kept (saved) the name of the AUSA who declined the federal prosecution.

As to making a mistake about writing the wrong date, or making an inaccurate statement, as a working special agent with INS, ATF, and Customs, I learned that one way to correct the mistake, if the case is being prosecuted, is to make an amended report of investigation. I learned my first lesson when working for the U.S. Customs when in 1994 in Detroit, Michigan I made a mistake and wrote an inaccurate statement. My immediate supervisor (on the advice and orders of the then-SAC Richard Hoglund recommended that I be disciplined with a suspension of three (3) days. In preparation for my own defense, I pulled at least a dozen of recent Reports of Investigations where special agents made inaccurate statements, yet they were given the chance and opportunity to submit a second report of investigation correcting the first one. These agents were not disciplined.

I am rather surprised of Alonzo Pena making the decision to fire ICE agent Gilberto M. Rodriguez, unless there were “other reasons” for rendering such decision. Pena is a former Bureau of Alcohol, Tobacco & Firearms (ATF) special agent and he knows how important and imperative is when making gun federal cases is to have the actual certified court convictions in our hands before even asking an AUSA to approve federal prosecution on gun charges. How soon he forgot when he was merely an average ATF and Customs working agent.

As a Resident Agent in Charge for the Office of Internal Affairs, U.S. Customs Service, I used to tell and remind managers and supervisors of the Office of Investigations and Customs supervisory inspectors and port directors not to use the Customs disciplinary process to get even with an employee, to seek revenge, or simply discriminate and retaliate against an employee for a minor infraction. Why I used to give such advice? In my career in law enforcement starting in 1978 as a police officer, I learned that management was largely to blame because I remember supervisors telling me to change the wording of a particular report because “may be my memory was not very good” specially when I was a witness of a police brutality complaint and internal affairs had requested my memorandum.

I have seen too many INS, ATF, Customs and ICE’s SES, GS-1811-15s and GS-1811-14s, including AUSA’s either getting criminally indicted or fired for engaging in criminal or administrative misconduct, when engaged in imposing disciplinary or adverse actions (remember U.S. Attorney General Al Gonzalez?) In fact, I personally know ATF and ICE managers and supervisors that should have been fired long time ago, yet they are still on the job. I will write more about this in another story.

The Gilberto M. Rodriguez case is your typical average disciplinary adverse personnel action against an employee who is either considered a “disloyal employee,” a “trouble maker,” a “chronic complainer” (terms used exclusively by employers) or merely an agent that is not liked by his/her supervisor due to just a personality conflict. Rather than using the ultimate form of punishment, which I called it “capital punishment” – it is better to re-assign the employee to another unit or transfer him or her to another office where the employee will have a new immediate supervisor. However, if the second or third-line supervisor is the one who dislikes the employee, then the employee must be relocated to another office. In the long run, the employer saves millions of dollars in training new hires (agents) and developing them into successful criminal investigators. Discipline should be used as a training tool to rehabilitate an employee and not as a form of punishment. Also discipline must be consistent with the type of offense and must be progressive. The use of the “Douglas Factors” should be considered in any proposed disciplinary or adverse personnel action.

ICE’s DOUBLE STANDARDS ON ITS DISCIPINARY PROCESS

OBSTRUCTION OF JUSTICE, CONSPIRACY, FALSIFICATION OF OFFICIAL DOCUMENTS, ABUSE OF AUTHORITY:

1998, Associate Special Agent in Charge Steven Hooper, and Assistant Special Agent in Charge Marcy Foreman, Office of Investigations, Houston, TX. Hooper and Foreman falsified official documents covering the loss of 200 kilograms of cocaine. The agents were involved in a controlled delivery of approximately 200 kilos of cocaine. The case agent was Randy Hilding and the Group Supervisor was Robert Rutt. Due to agent error, they lost the load. Then Assistant Special Agent in Charge Marcy Forman and Associate Special Agent in Charge Steven Hooper wrote a memorandum covering the whole thing up. No action was ever taken. MARCY FORMAN IS NOW THE CURRENT ICE’s DIRECTOR OF THE OFFICE OF INVESTIGATION

ABUSE OF AUTHORITY AND OFFICE/UNAUTHORIZED DISCLOSURE OF SENSITIVE INFORMATION/OBSTRUCTION OF JUSTICE/OBSTRUCTION OF AN INTERNAL AFFAIR INVESTIGATION:

1998 and 1999 -Assistant Chief Counsel Starla Mathews assigned to El Paso, TX, contrary to her position, provided legal counsel to Supervisory Criminal Investigator Ramon Torrez while the Office of Internal Affairs was investigating him. Customs Counsel Matthew’s actions were contrary to and in violation of Customs policy/conflict of interest. In the spring of 2001, it was announced that GS Torrez had been indicted for smuggling/bribery charges. Shortly thereafter, the then current Alonzo Pena, Acting Special Agent in Charge, Houston, Texas, advised personnel that he had been at a party in on an occasion at GS Torrez's residence in El Paso, TX. ASAIC Pena was previously assigned as the ASAIC in El Paso, TX. According to ASAIC Pena, Special Agent in Charge Joseph Webber and Starla Mathews were also present at this party at GS Torrez’ residence. ASAIC Pena stated that Counsel Matthews nonchalantly told Webber and him (Pena) that she had advised GS Torrez not to cooperate with the El Paso internal affairs agents and not to sign an Internal Affairs form that the IA agents had requested Torrez sign during an interview. This form was a non-disclosure form that Customs employees being interviewed by IA are required to sign. At the time GS Ramon Torrez had come under investigation by IA and the El Paso FBI. Counsel Matthews committed a violation of policy and interfered with an investigation by advising GS Torrez against the Customs Service. SAIC Webber and ASAIC Pena were also in violation of Customs Policy for failing to report Counsel Matthews’ misconduct to the Office of Internal Affairs. The Customs Service never disciplined Matthews nor has it considered the violations by SAIC Webber and ASAIC Pena in their failure to report this misconduct. Subsequently Ramon Torrez was convicted in federal court for drug related corruption charges and received a very lengthy prison sentence. ALONZO PENA WAS NEVER INVESTIGATED OR DISCIPLINED AND INSTEAD, HE WAS PROMOTED TO BE AN SES ICE’s SAC FOR SAN ANTIONIO, TEXAS, ICE’s SAC FOR THE ENTIRE STATE OF ARIZONA AND NOW HE HAS BEEN PRE-SELECTED AS THE DHS ATTACHE FOR MEXICO CITY.

FALSE STATEMENTS, CONSPIRACY, OBSTRUCTION OF JUSTICE, PERJURY AND ABUSE OF AUTHORITY:

On December 14, 2001 – retired Senior Executive Director Donald Shurhan, retired and re-hired Associate Special Agents in Charge Kyle “Bully” Barnette, Vince Iglio, retired Associate Special Agent in Charge Greg Rabeler, RAC for IA James “Breck” Ellis, Special Agent Allan Sperling and others yet unknown.

On March 16, 2004, Bill Conroy, Co-Publisher of Narco News, in essence reported the following regarding the internal investigation of the 1998 death of Customs special agent Gary Friedli. The death occurred in Arizona when Friedli was a passenger in a GOV driven by agent Sperling. The investigation was said to be questionable, because the initial investigation into Friedli's death found that Sperling had done nothing wrong, and Sperling was allowed to return to work without disciplinary action. Because of the pressure by the Friedli's widow and family, to learn what really happened, two subsequent investigations were concluded in 2000 -- one by Treasury OIG and another probe by Customs Internal Affairs. Both investigations concluded: "(Sperling) had operated his vehicle in an unsafe manner that `significantly contributed' to Friedli's death," as stated by the Associated Press article about the case, published in April 2001." They also concluded that Sperling's supervisors in Arizona had given misleading statements to Customs agents probing the accident. "Both investigations made note of Sperling's prior bad driving record." From 1992 to 1997, while employed by the USCS (U.S. Customs Service), Sperling was involved in five documented vehicle accidents, four of which were on duty," states a report of investigation prepared by Treasury OIG in 2000. "In one accident, which occurred at night on Geronimo Trail Road (also the location of the Friedli accident), Sperling was traveling at approximately 80 mph when he struck a cow." Kupla-Friedli said no further action was taken against Sperling in relation to her husband's death because after the second and third investigations were opened, someone in Customs issued Sperling a letter of reprimand, which precluded the agency from pursuing further discipline." Further, Bill Conroy’s investigative report posted in the Narco News corroborated that the initial Customs’ internal affairs conducted had numerous false or misleading statements and/or purposely failed to conduct a complete and unbiased internal investigation. This investigation was managed by retired James “Breck” Ellis, who after Bill Conroy’s Narco News became public; he along with Greg Rabeler and later Donald Shurhan suddenly retired. KYLE “BULLY” BARNETTE IS CURRENTLY THE DIRECTOR OF AN ICE’s OFFICE OF INTELLIGENCE IN THE SOUTHEAST REGION.

For a complete account and reading of the “cover-up” committed by the above referenced Customs management officials, including false statements written by Customs’ internal affairs special agents, regarding the death of U.S. Customs Service’s special agent Gary Friedli refer to Bill Conroy’s story at: http://www.narconews.com/Issue32/article927.html - All of the Legacy U.S. Customs Service management officials who retired and the ones who are still working for ICE have never been disciplined for the cover-up, lies, obstruction of justice etc.

FALSE STATEMENT, PERJURY AND ABUSE OF AUTHORITY:

2001 – Associate Special Agent in Charge Robert Medina, Office of Investigations, El Paso, Texas. ASAIC Medina lied under oath during an MSPB appeal regarding the removal of an Office of Investigations Special Agent. During the MSPB deposition of Disciplinary Review Board member and proposing official, Robert Medina, he, under oath denied having called Enrique Castro, the former Mexico City Customs Attaché‚ to illicit derogatory information while he (Medina) was reviewing a "Redbook" (Report of Investigation) regarding Javier Vasquez's alleged misconduct. Under oath, Medina lied and committed perjury when he answered, "NO, I did not call Enrique Castro." Castro stated in an un-sworn written document that Medina indeed made the above referenced illegal and inappropriate inquiry. Medina in 2007, had to be removed from his ICE (SES) SAC’s position from Arizona after Arizona Governor Janet Napolitano complained to the U.S. Department of Homeland Security’s (DHS) Secretary Michael Chertoff that Medina was no longer welcomed in Arizona because of his failure to cooperate and work together with his local state, local and county law enforcement counterparts. Such an allegation and complaint merited a formal internal investigation by the DHS’ Office of Inspector General. However, Medina was not disciplined and instead was relocated to his hometown of El Paso, Texas where he became the ICE’s SAC (SES). ROBERTO MEDINA IS CURRENTLY THE ICE (SES) SAC, EL PASO, TEXAS.

OBSTRUCTION OF JUSTICE, WITNESS TAMPERING, CONSPIRACY AND FALSE STATEMENT:

1990s, Wayne Roberts, a GS-1811-15 Supervisory Criminal Investigator, Office of Investigations. Former Senior Agent Wayne Roberts, was promoted to Customs Attaché‚ Caracas, Venezuela despite being the target of a Miami criminal grand jury probe in 1991. He was questioned about his role in the secret removal from the U.S. of a government witness who was set to testify in the trial of deposed Panamanian leader Manuel Noriega. Roberts was also publicly accused by Customs management, of giving false statements to his supervisors regarding this. There were no indictments. Roberts denied that he lied. Roberts was investigated by IA and was subsequently charged internally with "negligent or careless performance of duties where . . . a Customs enforcement function is substantially and negatively impacted, '' guidelines call for at least a 5 day suspension.

PERJURY AND FALSE STATEMENT

On August 9, 2001, Assistant Commissioner John Varrone, Office of Investigations committed Perjury during an MSPB hearing in New York, NY. On August 9, 2001, Varrone testified before an administrative judge regarding an MSPB appeal filed by special agent James Heavy who had been served with a proposed letter of termination for drinking alcohol while being armed. As an affirmative defense, agent Heavy reported that Varrone, as the Special Agent in Charge of the New York City Office of Investigation, gave a verbal authorization to his Associate Special Agent in Charge Marvyn Walker, to approve the drinking of alcoholic beverages at the 2000 Customs Christmas party. Varrone under oath denied giving such oral authorization to Associate SAIC Walker. However, Walker and the other witnesses' testimonies were more credible than Varrone. The MSPB judge concluded that Varrone more likely than not, knew or should have known that alcohol was consumed at the Christmas party. Varrone's false statement and his perjury was reported to the Treasury's OIG, however, no action was taken. Later on, Varrone was promoted to the position of Assistant Commissioner for the Office of Investigations.

I hope the average American Citizens, our legal permanent resident aliens and visitors from other countries understand how corrupt the U.S. Immigration & Customs Enforcement (ICE) is when its management officials operate as if they were above the law, while misusing our tax-payer’s monies. I wish I can tell you to write to the U.S. Congressional committees and subcommittees who have oversight over ICE. But I believe that you will be wasting your time and postage in writing to them or to your local U.S. Senator or U.S. House of Representative. The problems at the U.S. Customs Service and now ICE go back several years – no wonder the Nogales International Port of Entry is now named the Dennis DeConcini Nogales, while the U.S. District Court in Tucson, AZ was named after former U.S. Senator Dennis DeConcini’s father Evo A. DeConcini

Former U.S. Senator Dennis DeConcini was and is a strong supporter of the Legacy U.S. Customs Service and ICE. I will write a separate story between the two.

However, no one is above the law – let’s remember Watergate and Richard Nixon as an incentive to continue with our struggle to seek justice and due process.

MSPB Reverses Removal of Federal Employee

The Law Offices of Lynette A. Whitfield, LLC

April 30, 2008

In September 2006, the Department of Homeland Security proposed Gilberto M. Rodriguez’s removal from his position as a senior criminal investigator for Immigration and Customs Enforcement on the charge that Mr. Rodriguez had falsified official government documents and made false statements. After a hearing at the Merit Systems Protection Board, the Administrative Judge sustained the Agency’s charges. Mr. Rodriguez requested reconsideration and on April 10, 2008, the Board found that the Agency did not prove its charges and did not sustain Mr. Rodriguez’s removal.

The Agency’s first charge alleged that while processing an undocumented alien in the Agency’s custody, Mr. Rodriguez falsified agency form I-213 by indicating a specific Assistant United States Attorney (AUSA) had declined the alien’s prosecution. Mr. Rodriguez testified that he used the duty roster to determine which AUSA he had spoken to about the prosecution of the alien. The Agency did not find Mr. Rodriguez’s response to the charges to be credible, and inferred that this lack of credibility coupled with the incorrect information, constituted circumstantial evidence that Mr. Rodriguez had knowingly supplied incorrect information.

A falsification charge contains an element of intent which must be proven by preponderance of the evidence and in consideration of the totality of the circumstances involved. To sustain a falsification charge, an agency must prove that the employee knowingly supplied incorrect information with the intent of defrauding the agency. Thus, establishing that the employee supplied incorrect information is not, by itself, enough to sustain the falsification charge.

Charges such as “improper conduct” or “failure to obey orders,” do not contain a specific intent element and the Board’s decision indicated that Mr. Rodriguez’s actions might support a charge for this type of conduct. However, the Board is unable to substitute the charge that it deems more appropriate, but is instead limited to a review of the Agency’s decision and the charges put forth by the Agency. Therefore, the Board held that the Agency had not proven the “intent” element of the charge and therefore the falsification charge could not be sustained. The Agency was ordered to cancel the removal action and to retroactively restore Mr. Rodriguez’s employment.

Federal employees who are subjected to an adverse action based upon a charge that requires intent should be aware that the agency bringing these charges against the employee will need to establish that the employee actions were intentional, not simply negligent or unintentional.

Case discussed: Rodriguez v. Dept. of Homeland Security, Docket No. DA-0752-07-0177-I-1, 2008 MSPB 85 (April 10, 2008).

http://whitfieldlegal.blogspot.com/

Immigration boss' transfer cheered by Daniel González
The Arizona Republic Aug. 17, 2006 12:00 AM

The federal official in charge of immigration enforcement for Arizona is being transferred to El Paso, drawing cheers from Gov. Janet Napolitano and Maricopa County Sheriff Joe Arpaio.

Roberto Medina's arrogant attitude and refusal to cooperate with state and local officials hurt the state at a time when Arizona is struggling to combat a major crime problem with smuggling networks that take advantage of federal policies that funnel illegal immigration traffic through the state, Napolitano and Arpaio said. (Emphasis mine)

"His hostility to state and local law enforcement, coupled with a 'we know better than you' attitude was counter to the mission of his agency and did serious damage to the relations between our state and your department," Napolitano and Arpaio wrote in an Aug. 14 letter to Department of Homeland Security Secretary Michael Chertoff. "We are greatly relieved and encouraged that he is being replaced." http://www.azcentral.com/arizonarepublic/local/articles/0817iceboss.html

EVO A. DeCONCINI

In 1943, after an unsuccessful attempt to take over the 5 organized crime families of New York, narcotics king pin Joe Bonnono moved to Arizona. When Customs tried to deport Bonnono, Evo DeConcini, father of Arizona Senator Dennis DeConcini, and an Arizona Supreme Court judge at the time, mounted a strong defence for his friend Joe Bonnono. Evo went on to amass a fabulous fortune and Arizona became the number one narcotics trafficking state in the US. Dennis now sits as co)chair of the SENATE NARCOTICS CONTROL COMMITTEE.

In Joe Bonnano's book MAN OF HONOR, Bonnono provides pictures of Evo DeConcini socializing with Bonnono, Joseph Profaci and Joseph Magliocco ))) three of the very king pins of the narcotics industry. Dennis is on record with the ridiculous statement that he thought his father's unusual friend was "a retired cheeseT h) Tmaker from Wisconsin". Chuck Bonnono was snuffed a week after the monks in Sedona Arizona indicating unrest in the industry. http://www.wpngnc.org/ables.htm