Did DEA Administrator Tandy duck day in court over House of Death?

Tandy had earlier provided a deposition in Gonzalez’ lawsuit, but also was scheduled to testify at the trial itself, which got underway on Monday, Dec. 4. But at the last minute, she decided not to show up to testify. Gonzalez, former special agent in charge of DEA’s El Paso field division, in February 2004 wrote a heartfelt letter to his counterpart at U.S. Immigration and Customs Enforcement (ICE) in El Paso. In that letter, Gonzalez expressed his outrage at the role ICE and a U.S. prosecutor in El Paso had played in enabling a government informant to participate in multiple murders at the House of Death in Ciudad Juarez.

Gonzalez claimed in his pleadings in his legal case that DEA had retaliated against him for a variety of reasons, including his participation in activities exposing DEA’s discrimination against Hispanics within its ranks, for his letter exposing the House of Death cover-up and for an earlier act of whistleblowing on his part in which he raised too many questions about a missing 10 kilos of cocaine.

All of those areas would have been fair game in Tandy’s scheduled appearance at the Miami trial that concluded earlier this week, except, importantly, for the House of Death, since the judge had earlier ordered that all matters related to the Juarez murders could not be introduced at the trial.

But did Tandy know something that the judge and Gonzalez’s attorneys did not know? Was it possible that Tandy had reason to fear that if she took the stand, under oath, that she might be forced to disclose the “whole truth and nothing but the truth” about the House of Death mass murder?

Missing coke

Gonzalez’ problems at DEA date back to the late 1990s, when he demanded that agency officials tell the truth about the Bover case.

Following a November 1998 search of a suburban Miami house, a joint DEA/Miami-Dade Police team came up short on a stash of cocaine. Prior surveillance of the house indicated there should have been about 32 kilograms of cocaine on the premises, but the total amount accounted for after the search fell 10 kilos short of that mark.

Enrique Bover and his wife, Gisel, who each had prior drug convictions, were the targets of the raid. After their arrest, the Bovers agreed to become confidential informants in a play for leniency in their case. Their cooperation did lead to several arrests.

The Bovers assert that they informed DEA agents about the missing cocaine immediately after their arrest and that the information was ignored. Months later, the Bovers found themselves being accused of taking the 10 kilos of coke.

However, Gonzalez, who was then associate special agent in charge of DEA’s Miami field office, suspected a set-up. He says the same Miami-Dade Police team involved in the Bover raid was responsible for “compromising three prior drug cases.”

“I took a stand on the missing 10 kilos of cocaine, and insisted that that they (DEA) do an investigation,” Gonzalez told Narco News in an earlier interview about the case. “And that was it.

“…The missing cocaine is definitely the catalyst of my problems,” he added. “The cover-up [since then] has been amazing. They [Gonzalez’ superiors] look at you blank-face and then look the other way.”

In the wake of that incident, Gonzalez was transferred in 2001 to a less-prestigious post in the much smaller DEA outpost in El Paso. After that, until he retired in 2005, DEA refused all his requests for transfer or promotions, which Gonzalez claimed in his litigation was retaliation for his acts of exposing the alleged wrongdoing in the Bover and House of Death cases.

Tandy came into the picture in July 2003, when she was confirmed as the administrator of DEA. At that point, Gonzalez had been on the job in El Paso for 27 months, and again let it be known through the chain of command that he was interested in being transferred to a new post within DEA.

Gonzalez’ request was not honored by Tandy, despite the fact that through January of 2004, she had approved transfers for 11 other DEA officials comparable in rank and experience to Gonzalez.

Then, on Feb. 24, 2004, Gonzalez sent the House of Death letter to Giovanni Gaudioso, the ICE Special Agent in Charge (SAC) in El Paso, decrying the government’s complicity in mass murder in Juarez and the efforts by ICE agents and a U.S. prosecutor in El Paso to cover-up the role of their informant in the murders.

Retaliation to sender

In his letter to ICE’s Gaudioso, Gonzalez discussed the ICE informant’s role in facilitating the torture and murder of up to a dozen people at the House of Death in Juarez between August 2003 and mid-January 2004. The informant carried out his bloody assignment with the knowledge of ICE agents and the U.S. prosecutor in El Paso until the entire operation was exposed after the narco-trafficker responsible for ordering the murders, Heriberto Santillan-Tabares, targeted a DEA agent and his family for a “carne asada” – a trip to the House of Death.

Tandy, in her Aug. 23, 2005, deposition for the Miami litigation, described Gonzalez’ letter to Gaudioso as “inexcusable” and accused Gonzalez of being insubordinate and further claims the letter threatened an internal investigation of the House of Death debacle being carried out in early 2004 by a DEA/ICE Joint Assessment Team (JAT). The joint team conducted interviews with 44 individuals in both El Paso and Mexico who worked for DEA, ICE, the U.S. Attorney's office and the Department of State, according to the government’s pleadings in the Gonzalez lawsuit.

The report compiled by that JAT has never been made public. The National Security Whistleblowers Coalition, however, recently filed a lawsuit under the Freedom of Information Act seeking to compel the DEA to release the report.

Opposing positions

After Gonzalez sent the letter to ICE, a copy of which eventually landed on the desk of U.S. Attorney Johnny Sutton in San Antonio, Tandy claimed she lost confidence in him and after that point did not consider him for any transfers or promotions within DEA.

Government pleadings in the Miami case lay out Tandy’s position on the matter:

On February 24, 2004, [Gonzalez] wrote a letter to his counterpart at ICE and to the U.S. Attorney's office. Without participating in the JAT investigation or seeking approval from Headquarters, Gonzalez accused the U.S. Attorney's office and the ICE SAC (special agent in charge) in a complicity in the murders of Mexican citizens and threats to DEA agents. [Gonzalez] regarded the ICE-SAC as the wrongdoer primarily responsible for the events, stating in his letter, “I have no choice but to hold you responsible for this unfortunate situation.”

News of his letter surfaced within DEA in March 2004.

Administrator Tandy, dealing with the matter, wrote in an e-mail to DOJ Executive Officials on March 5, 2004: “DEA HQ officials were not aware of our El Paso SAC’s inexcusable letter until last evening…. The SAC did not tell anyone at HQ that he was contemplating such a letter, and did not discuss it or share it with HQ until we received the copy as noted above, well after it was sent. I apologized to [U.S. Attorney Sutton] last night….”

Thereafter, Administrator Tandy had an “utter lack of confidence” in Gonzalez. She described his actions as like “tossing a hand grenade into the middle of a firefight.” Tandy went personally to brief the Attorney General and the Deputy Attorney General on the JAT matter.

The Administrator described his conduct as “such colossally poor, fatal judgment on Sandy's part, to get in the middle of what he knew was a sensitive, established, ongoing process to deal with the issues.” In fact, the Administrator [Tandy] wanted to demote him from his current El Paso SAC position. According to the Administrator, after his conduct concerning the DEA/ICE matter, [Gonzalez] was not in contention for the post-March 2004 [DEA job] positions ….

As a result of sending the House of Death letter, Gonzalez received a downgraded rating in one area of his annual performance review. Gonzalez responded to that downgrade, which he characterizes as retaliation, by sending a memo on Aug. 27, 2004, to Michele Leonhart, the deputy administrator of DEA, requesting a review of his performance rating. In that request, he writes the following:

My letter holding the ICE SAC responsible for the actions of his agents and their informant, after [about a dozen] human beings had been found dead and buried in the backyard of a house in [Ciudad Juarez] was most appropriate under the circumstances because I was exercising my sworn duty to enforce the law and my obligations to report alleged misconduct and protect my agency and its employees. Your statement that my letter fueled animosity is nothing more than speculation and self-benefiting conjecture at the behest of the U.S. Attorney [Johnny Sutton] clearly for his own reasons. Mexican officials are not upset with the letter [to ICE SAC Gaudioso] because they have not seen it. They are upset for having been misled by ICE and because several Mexican citizens died unnecessarily as a result. I had every right to express my outrage with the situation, and what I wrote to my counterpart at ICE was the truth, and if telling the truth caused animosity at ICE and the U.S. Attorney’s Office so be it. Your belief that my letter was responsible for bringing on the press and outside inquiries does not constitute fact, nor does it parallel close to any fact. My letter could not possibly have brought on press inquiries because the press has not seen it. If they had, it would have been printed in its entirety by now.

How does the truth jeopardize a federal prosecution? Are we not supposed to tell the truth? I recall you, the Chief of Operations [Mike Furgason], and the Administrator [Karen Tandy] being outraged with ICE and this whole situation until the U.S. Attorney [Sutton] protested. After that the three of you were suddenly outraged at me. Amazing! To say that my letter jeopardized a federal prosecution is ludicrous because the information in the letter is also contained in many other documents generated during the investigation that are discoverable anyway. For example, if my letter is discoverable so is the timeline of events prepared by the [DEA’s] Juarez Resident Office, as well as the report prepared by the [JAT] fact-finding team. Additionally, at what point does the alleged outrage prompted by my letter become more important than the outrage that should have been caused by the actions of the ICE informant [Guillermo Ramirez Peyro], the threat against our agent and his family, and the murder of human beings under these circumstances? What was of foremost importance at the time was resolving the threat against our agent and his family, which had a higher overriding interest than any pending prosecution matter. In light of the facts in this matter, your characterization of my writing the letter as “extremely poor judgment” is out of line considering that I reported crimes and procedures that ultimately had an adverse impact on the safety of our agents as well as on the lives of human beings.

Gonzalez also claims that he was directed by his superior to stay on top of the House of Death case because a DEA agent and his family were nearly killed due to the ICE informant’s activities. He claims that far from writing his letter without authorization, he, in fact, was told by DEA Chief of Operations Furgason to get actively involved in seeking information about the Juarez fisasco due to ICE’s failure to cooperate with DEA.

The glitch

But the government’s version of why Gonzalez was denied transfers or promotions within DEA had a big glitch. Tandy had authorized some 11 transfers of other DEA officials prior the Gonzalez’ Feb. 24, 2004, letter, and an additional five transfer after that date, Gonzalez claims in his litigation. So if the letter was really the reason she lost confidence in Gonzalez, then how does she explain the fact that she failed to authorize transfers or promotions for him prior to the letter?

Gonzalez claims that he was transferred from Miami to El Paso in retaliation for exposing the missing coke in Miami and that the retaliation only intensified after he blew the whistle on the House of Death cover-up in El Paso. The government’s treatment of him eventually led Gonzalez to retire from DEA on Jan. 8, 2005.

Gonzalez claims further that the cover-up of the House of Death murders goes to the highest levels of the Department of Justice and that Tandy initiated the retaliation against him at the behest of U.S. Attorney Johnny Sutton.

He spells out the details of that allegation in a complaint he filed in September 2004 with the U.S. Office of Special Counsel:

… This issue began on February 24, 2004, when I sent a letter to the Special Agent in Charge of the Bureau of Immigration and Customs Enforcement (ICE) in [El Paso, Texas] in essence holding him responsible for the actions of ICE personnel and one of their informants regarding the discovery of several bodies buried in the backyard of a residence located in the city of [Ciudad Juarez] Republic of Mexico, and the obstruction of an investigation about a threat against the life of a DEA agent and his family. Since a federal prosecutor was in the mix, I also sent the letter to the prosecutor’s supervisor in the Office of the United States Attorney for the Western District of Texas, [San Antonio]....

A few days later I received a telephone call from [Mike Furgason], the Chief of Operations of the Drug Enforcement Administration, who informed me that the United States Attorney for the Western District of Texas [Johnny Sutton] had been given a copy of the aforementioned letter and that [Sutton] was very upset with it, and had alleged that my letter had created discovery material in the federal case against [Heriberto Santillan-Tabares]. [The Chief of Operations at DEA] also said that [Sutton] had gone directly to the Department of Justice (DOJ) to complain about me, and that DOJ officials had contacted [the] DEA Administrator [Tandy] to inform her about [Sutton’s] complaint....

… I believe that I’m being punished for speaking the truth about a serious matter of public concern that is not publicly known. When I made this known to the United States Attorney for the Western District of Texas [by sending a copy of the letter to his office in San Antonio], rather than take corrective action, he attacked my professionalism. (And, indirectly criticized my integrity, ironically for refusing to participate in a cover-up, which may even constitute the criminal offense of obstruction of justice, misprision of a felony, or, to a lesser extent, a federal agency’s negligence resulting in multiple homicides.) DEA officials that are fully familiar and upset with the issue of the murders, as well as the obstruction of the investigation of the threat against the life of a DEA agent and his family, and admitted this to me, are now following the political and personal agenda of the United States Attorney for the Western District of Texas [Johnny Sutton] by retaliating against me with a negative performance appraisal. In addition to all of the above, there is also a First Amendment violation here.

Surprise attack

But the judge in Gonzalez' Miami case cut the government a break. Prior to the trial, he ordered that the entire Juarez House of Death matter would be off limits during the trial. That essentially cut the legs out of Gonzalez’ case on a major front and put Tandy in the position of not having to address the inconsistencies in her earlier deposition.

So why then did Tandy, on Sunday, Dec. 3, the day before the Miami trial was scheduled to begin, send word to Gonzalez’ attorney that she would not be able to testify due to complications from a surgery she underwent in November? And strangely, even though Tandy claimed she could not testify at the trial due to health reasons, she still was well enough to show up at her office in Washington, D.C., on Monday, Dec. 4, while Gonzalez’ trial was underway, DEA sources confirm.  

Could her sudden decision not to testify be due to the fact that she was fully aware that the government’s attorneys were going to ignore the judge’s order and attempt to blindside Gonzalez at trial by raising the issue of the House of Death letter as an example of his alleged insubordination?

That’s precisely what the government’s attorneys tried to do.

But it backfired.

As a result of their surprise attack, the House of Death letter itself was entered into evidence for the jury to review, and Gonzalez’ attorney was able to cross-examine the government’s witnesses about their actions in relation to that letter. Among those witnesses were Leonhart and Furgason.

And it appears the jury of nine men and women, the first American citizens to hear both sides of the House of Death debacle in a legal forum, didn’t buy the government’s arguments.

Although it is not clear how much weight the jury gave to each particular factor of the alleged retaliation (whether it was DEA’s actions against Gonzalez due to the Bover case or the House of Death case) it is clear that they decided the DEA had retaliated against Gonzalez, because they found in his favor -- awarding him economic damages. Once attorney fees are added to the mix, the verdict against the government could wind up costing the taxpayers more than half a million dollars when all is said and done.

According to Gonzalez, Tandy’s decision to not testify in court in his case, particularly in relation to the House of Death, was due to one factor:

“She did not show up because she did not want to face cross examination from my attorney,” he says.

You have to wonder how she would fare in the limelight of a Congressional hearing?