Sunday, March 1, 2009

Prosecutor: whistleblower is a “danger” to society

Prosecutor claims Iran/Contra whistleblower is a “danger” to society
Bill Conroy
February 22, 2009

Iran/Contra whistleblower Celerino “Cele” Castillo III was scheduled to report to prison on March 5, but the power of justice has intervened on his behalf.

A federal judge in San Antonio, at a hearing held late last week, ruled that Castillo's report date to prison should be extended until July 20. The judge, W. Royal Furgeson Jr., issued his ruling over the objections of a federal prosecutor, who argued that Castillo should be sent to prison because he was a “danger to the community.”

The hearing was called by the judge to consider a motion to allow Castillo to remain free on bail through his appeal. The motion was filed by Castillo's current attorney, public defender Judy Fulmer Madewell.

“One of the government’s arguments [made by the U.S. prosecutor, Mark T. Roomberg] as to why my client is a danger to the community is that he put an outrageous and erratic posting on his Web site,” Fulmer Madewell told the judge at the Feb. 19 hearing in federal court in San Antonio. “That story was actually written by someone else … so it was not an outrageous post by the defendant.”

In fact, Narco News originally published that story (U.S. government finally exacts revenge on Iran/Contra whistleblower Cele Castillo). The article raises serious questions about whether Castillo’s prosecution was politically motivated.

Castillo was convicted late last year on federal charges of dealing firearms without a license in a case marked by numerous irregularities and peculiar coincidences that raise the specter of a frame-up.

For example, Castillo was being represented by a lawyer who was in the process of having his bar license suspended for misappropriating his clients’ funds. In fact, that attorney, Robert “Eddie” De La Garza, was aware on Oct. 17, 2008, (five days before Castillo’s sentencing date on Oct. 22) that his Texas law license was being suspended effective Nov. 1, 2008.

On top of that, this same lawyer’s son was facing serious gun charges in another federal court in Texas at the same time he was representing Castillo.

De La Garza’s son, Andrew, in February 2007 was indicted on weapons charges as the result of an ATF investigation in McAllen, Texas — near the Mexican border and the same city where the same federal law enforcement agency worked to make the case against Castillo.

According to evidenced submitted to the court by Fulmer Madewell, one of the ATF agents involved in the case made against De La Garza’s son also was involved in Castillo’s case.

Andrew De La Garza was charged with making a false statement to a firearms dealer during the acquisition of a gun and possessing a firearm with an obliterated ID and was facing a potential 15-year prison stint. That case is still playing out in U.S. District Court for the Southern District of Texas. Castillo’s case is being heard in the Western District of Texas — prosecuted by the U.S. Attorney’s Office for that district, led by Johnny Sutton.

De La Garza’s kid was offered a plea deal on May 2, 2008, a couple weeks after his father took on Castillo's case. The prosecutor in the son’s case agreed to drop one count "at the time of sentencing" and agreed to recommend a decrease in the offense level on the other count — a good deal that promised to substantially reduce the potential prison sentence. But that deal is still subject to the judge’s discretion at the time of sentencing.

Added to that coincidence of events is the fact that sentencing dates in the case involving De la Garza’s son have been postponed several times -— each time to move the date back past a crucial court date in Castillo's case. (The latest postponement pushed the kid's sentencing date back to late March, after Castillo’s original March 5 prison-report date.)

Those facts on there own create a huge conflict of interest for De La Garza in handling Castillo’s case, given that both his law-license woes and the charges facing his son would have made it extremely difficult for him to provide a vigorous defense for Castillo. In the back of his mind, the attorney had to worry about his future, and that of his son’s, should he run afoul of the prosecutor in Castillo’s case, according to attorneys and law enforcers who spoke with Narco News.

Fulmer Madewell raised the issue of De La Garza’s conflict of interest in the hearing held last week (on Feb. 19) at the John H. Wood Jr. U.S. Courthouse Building in San Antonio. Fulmer Madewell told the judge that she was in the process of preparing briefs for Castillo’s appeal that likely would include a claim of “ineffective assistance of counsel.”

“We already have sufficient public evidence in this case to bring it up now,” Fulmer Madewell said. “… In this case, the defendant’s attorney [De La Garza] failed to notify the court and the client of the conflict of interest and the ramifications of that conflict. … He should have told the court about the conflict so that the court had a chance to address it. … If the [appeals] court finds there was ineffective assistance of counsel in this case, it is likely to consider remanding the case [back to Judge Furgeson’s court] for further inquiry to determine what would have happened had the court known of these conflicts.”

Roomberg dismissed that argument.

“The defense wants us to speculate and believe that the U.S. Attorney’s Office … cut some deal with the defendant’s attorney [De La Garza] to throw the case [Castillo’s case]. That’s ridiculous,” he told the judge at the Feb. 19 hearing. “They [the defense] have not demonstrated ineffective assistance of counsel and have not alleged prejudice that rises to the level of a constitutional issue that might result in a new trial or reversal.”

Roomberg also told the judge, without specifying what evidence existed to back up the claim, that two of the “cop killer” guns allegedly sold by Castillo have since been found in Mexico — with the unspoken implication that they were sold to narco-traffickers.

However, Fulmer Madewell pointed out to the judge that one of those weapons, a rifle Roomberg claims was found in Matamoros, was not even listed in the court pleadings as being among the guns Castillo was accused of selling. The other weapon, a handgun allegedly found in Reynosa, Fulmer Madewell said, “is approved for import into the United States as a sport firearm.”

Castillo contends he never trafficked arms in Mexico — a claim advanced by the prosecution that Castillo contends is false. In fact, the magistrate who signed the ATF complaint that led to Castillo’s indictment specifically struck the trafficking charge from the complaint, because there was no evidence supporting it.

Political Payback?

Johnny Sutton, a former assistant district attorney in Harris County, Texas, hitched his star to the Bush political machine in 1995, when he was named the Criminal Justice Policy Director for then-Governor Bush. He served in that post until 2000, when Bush was elected president. In the wake of Bush’s victory, Sutton was named associate deputy attorney general at the Department of Justice in Washington, D.C., and also served as a policy coordinator for the Bush-Cheney presidential transition team.

In late October of 2001, Sutton was appointed by Bush to serve as U.S. Attorney for the Western District of Texas in San Antonio. The U.S. Senate confirmed the appointment a month later.

Former President George W. Bush has described Sutton publicly as a “a dear friend of mine from Texas.”

Castillo caused headaches in the 1980s for George W. Bush’s father, then vice president of the U.S. under Ronald Reagan, and for a number of Reagan administration officials who later went on to serve in George W. Bush’s administration. That fact can’t be ignored given the Bush administration’s history, as marked by various scandals, of assuring payback for its political enemies.

Castillo, a decorated Vietnam veteran who has no prior criminal record, on Oct. 22, 2008, was sentenced by Judge Furgeson to 37 months in a federal prison. On the advice of his attorney at that time (De La Garza), Castillo agreed on Oct. 1 to plead out to charges that he sold guns without a license after the original charges against him — making illegal gun purchases — were dropped after eight months because the prosecution had to concede they were bogus.

However, the prosecution threatened to re-indict Castillo on multiple other serious charges if he did not agree to cop a plea on the new charges. Castillo, with no money to take his case all the way to trial and already worn down from enduring months of fighting the bogus illegal gun-purchase charges, agreed to take the plea deal after De La Garza assured him that he would keep his DEA and veteran benefits so he could support his family. Castillo says De La Garza also told him that he likely would get probation given his background of service to the country.

Neither promise panned out.

De La Garza defends the plea deal, telling Narco News previously in a phone interview that Castillo was facing “a roll of the dice.” If he had not taken the deal, the government, he says, would have come at him with guns blazing and he might well have gotten far more time in jail.

“The government was not going away,” De La Garza said. “The threat was that they would go to the next grand jury and they would throw a whole bunch of stuff at him, five or six more counts.”

De La Garza also claimed that in a discussion outside the courtroom the day the plea deal was struck (on Oct. 1), Roomberg told him that Castillo would keep his benefits if he pled out to the new charges. And De La Garza says he relayed that information to Castillo — though De La Garza concedes he never assured it was written into the plea deal.

However, at the hearing last week before Judge Furgeson, Roomberg showed little concern over the fact that Castillo may have been mislead about the terms of the plea deal.

“Enough is enough!” Roomberg said to the judge. “No one wants to go to jail. I am sorry he [Castillo] will lose his benefits. He had every option not to commit a crime. Now he has to pay the price.”

Castillo made it clear to Judge Furgeson during testimony at his Oct. 1, 2008, court hearing, however, that he had reason to be concerned about the course of justice in his case because he believed there was a bull’s-eye painted on his back due to his role as a whistleblower in the Iran/Contra scandal.

From the transcript of that Oct. 1 hearing:

One of the major problems I had with the government was that I got involved or initiated the Iran/Contra investigation back at that time in El Salvador, in Guatemala, with Lieutenant Colonel Oliver North and I started reporting the incidents of drug trafficking and arms smuggling by several branches of our government. …

The Iran/Contra scandal, which played out during Reagan’s second term as president, involved efforts to illegally raise funds for the Nicaraguan Contra’s counter-insurgency against the government of Nicaragua via the sale of arms to Iran. The scandal also involved, as Castillo revealed in his whistleblowing at the time, funds raised from U.S.-sanctioned narcotics trafficking. Investigative journalist Gary Webb further bolstered Castillo’s claims of the U.S. government’s involvement in narco-trafficking in his now-famous Dark Alliance series published in 1996 by the San Jose Mercury News.

Castillo, while a DEA agent in Central America in the 1980s, during the Reagan/Bush administration, uncovered evidence that the CIA and the White House National Security Council, through San Antonio, Texas, native and national counter-terrorism coordinator Lt. Col. Oliver North and other CIA assets, were carrying out illegal operations at two hangers at Ilopango Airport in El Salvador. Those airport hangars, Castillo contends, served as weapons and narcotics transshipment centers for funding and arming the U.S.-backed Contras.

In 1992, then-President George H.W. Bush pardoned six former Reagan administration officials convicted of crimes related to their roles in the Iran/Contra scandal. President George W. Bush selected one of those individuals, Elliott Abrams, to serve as a special assistant to the president and a senior director on the National Security Council. He also appointed another Iran/Contra figure, John Poindexter, as director of the Defense Advanced Research Projects Agency’s Information Awareness Office. Poindexter’s Iran/Contra-related conviction involved multiple felony counts, including conspiracy and obstruction of justice. It was later reversed on appeal.

No Stranger to Controversy

During his tenure as a U.S. Attorney for the Western District of Texas (based in San Antonio), Sutton has been at the center of a number of controversial criminal cases, some of which have elicited national outrage.

Prosecutors under Sutton’s watch put Border Patrol agents Ignacio Ramos and Jose Alonso Compean in a federal prison facing sentences of 10 years-plus for shooting a drug smuggler in the posterior, a case that fermented national protest (primarily from the political right).

Sutton also oversaw the infamous House of Death case in which a U.S. government informant assisted in the torture and murders of at least a dozen people between August 2003 and mid-January 2004 in Juarez, Mexico (just across the border from El Paso, Texas, which is part of Sutton’s district).

He also appears to have played a role in the U.S. Attorney firing scandal. During the course of that scandal, which unraveled in 2007, Sutton served as the chairman of the Attorney General’s Advisory Committee of U.S. Attorneys, which has major influence in developing Department of Justice (DOJ) policies.

It is in the context of that latter role that Sutton’s name shows up in some of the e-mails turned over to Congress by the Department of Justice concerning the Bush administration’s controversial move to fire eight U.S. Attorneys — allegedly, according to some critics, in retaliation for their failure to pursue prosecutorial strategies deemed to be in the administration’s political interests.

According to the e-mails, it is clear Sutton was in the loop on the firings. How big a role Sutton played, if any, in initiating or orchestrating those terminations behind the scenes, or in pursuing politically motivated prosecutions, is not clear from the electronic missives. But given his favored status within the Bush administration, and his long-time ties to then Attorney General Alberto Gonzales and to President Bush, it seems that someone in Congress or President Barack Obama’s administration should be probing that possibility.

Higher Powers

Sutton’s office may consider any allegation that Castillo is the victim of a conspiracy played out as part of a political prosecution “ridiculous.” And Sutton’s office may even consider Narco News’ coverage of Castillo’s case as evidence that Castillo is “a danger to the community.”

But the judge in Castillo’s case doesn’t seem to be totally convinced that the Sutton’s office has an ironclad case against Castillo.

“All of us are very concerned about the drug war in Mexico,” Judge Furgeson said at the Feb. 19 hearing. “It is bringing enormous instability to that nation and creating problems for both Mexico and the United States.”

He added that the shipment of weapons to Mexico from the United States “is despicable and shouldn’t happen.” But Judge Furgeson also stressed that Castillo has a constitutional right to be represented by effective counsel.

“I am going to extend the [prison] report date [for Castillo] until I see the briefings for the appeal from both sides,” Ferguson ultimately ruled at the Feb. 19 hearing. “And I expect those to be done in March or April or June, so I’m extending the report date to July 20. At that point, I can take a look and decide if this matter [Castillo’s freedom] should be extended through the appeal [process].”

And in a direct slap-down of the prosecution’s contention that Castillo should be locked up because he is somehow dangerous, Judge Furgeson said: “Mr. Castillo has an unblemished record [since his conviction] and I do not see him as a further danger to society.”

So, it seems, Castillo stood up to the power of Sutton’s office and walked out of court last week with the wind of justice at his back. But his fate in the U.S. Justice system is far from determined at this point, since his case now hinges on an appeal to a higher court and another set of judges — the U.S. Court of Appeals for the Fifth Circuit in New Orleans.

For now, Sutton remains in power as a U.S. Attorney in the Obama Justice Department. In that light, President Obama’s new Attorney General, Eric Holder, might well want to take a close look at Castillo’s case as part of considering Sutton’s future with the DOJ.

After all, Sutton’s prosecution of Border Patrol agents Ramos and Compean has already resulted in Congressional inquiries and ongoing cries for further investigation — political pressure that ultimately, it can be argued, led President Bush to commute their sentences just prior to leaving office in mid-January.

In addition, Sutton has already been exposed as an individual who was willing to use his political pull within the Bush administration to silence and retaliate against a DEA whistleblower, Sandalio Gonzalez, who sought to expose the U.S. government’s complicity in the House of Death mass murder in Juarez, which also nearly led to the death of a DEA agent and his family in that same city.

And now Sutton’s office is at the center of the questionable prosecution of Iran/Contra whistleblower Castillo.

“I have no doubt that if Sutton was aware of all this [De La Garza’s conflicts of interest in Castillo’s case], he would have used it to put pressure on Cele’s attorney,” says Gonzalez, who, before being forced into retirement in the wake of exposing the complicity of Sutton’s office in the House of Death murders, served as Special Agent in Charge of DEA’s El Paso field office. “Those guys have no scruples.”

Maybe Castillo, and Narco News for reporting on his story, are simply “outrageous” and a danger to society, as Sutton’s prosecutor, Roomberg, contends.

Or maybe it is Sutton and his minions that represent the real danger to society, and it’s time for the Obama administration to consider bringing some hope and change to Texas, where this country’s latest national nightmare has its roots.

That is for you, kind readers, to decide.

Stay tuned….

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