LDF Helps Agents Beat Federal Criminal Charges

Posted on Wednesday, January 01, 2003 at 12:00PM

After seven days of trial and one hour of deliberation, a Federal Court jury found two U.S. Border Patrol agents not guilty of the Title 18 violation with which they were charged. Robert Curtin and John Wallace were charged in a one-count indictment alleging a violation of Title 18, United States Code, sections 242 and 2. After the indictment, the Border Patrol suspended agents Curtin and Wallace without pay.

The indictment alleged that Curtin and Wallace intentionally used unreasonable force against Erik Mendoza Rubio, thereby depriving him of liberty without due process of law. The accusation was based upon an incident that occurred in a holding cell at the Border Patrol’s Chula Vista station on August 30, 2001, when Mendoza became unruly, aggressive, and assaultive and had to be subdued through the use of reasonable and lawful force. After the indictment was issued, Mendoza filed a $6 million civil lawsuit against agents Curtin and Wallace.

On August 30, 2001, Mendoza was apprehended by the San Diego Police Department in a stolen rental car in Imperial Beach. He was in the driver’s seat. He refused to cooperate with the police and was unable to produce a driver’s license or other form of identification. He falsely claimed to be a United States citizen born in Oakland, California. Only when the officers searched the vehicle did they find three people locked in the trunk, one of them a woman who was 7 ½ months pregnant. Mendoza had said nothing about the people in the trunk, even though the pregnant woman was rapidly deteriorating and had to be rushed to the hospital.

After Mendoza refused to cooperate with the police, he was transported to the Border Patrol station in Chula Vista. There he was placed in a holding cell. Border Patrol Agents questioned Mendoza and were met with more lies and stonewalling. Among other things, Mendoza continued to insist he was a United States citizen. Mendoza’s true identity and background were revealed only when his fingerprint was compared against a law enforcement database. Eventually the agents learned the following:

Mendoza is a citizen of Mexico with no right to be in the United States.
May 6, 1998: Mendoza was arrested for alien smuggling and falsely claims to be a United States citizen with the name Javier Loza.
Also in 1998: He was arrested for marijuana smuggling (15 pounds) and received six month’s probation.
January 9, 1999: He was arrested for marijuana smuggling (87.7 pounds), but prosecution was declined.
July 25, 1999: Mendoza was arrested for illegal entry and removed expeditiously to Mexico with a five-year ban on returning to the United States.

November 18, 1999: He was arrested for alien smuggling assisted by his sister.
Agents confronted Mendoza with his criminal record and attempted to persuade Mendoza to be truthful and to cooperate. Mendoza admitted to smuggling the aliens in his car trunk for cash, but refused to provide any details about the alien smuggling organization for which he worked. Follow-up questioning produced no better results.

Mendoza remained in his holding cell for several hours. In the early afternoon, it was determined that Wallace would attempt to question Mendoza further. Wallace at this time was in plain clothes and was attached to an intelligence-gathering unit of the Border Patrol, which was focused on obtaining information on smuggling rings. It was hoped that Wallace, not in uniform and not involved in the initial questioning, would be able to obtain intelligence from Mendoza concerning his co-conspirators and their operations. Curtin, who was in uniform, was on hand to assist Wallace.

Mendoza responded to the agents’ questioning with impatience, defiance, and aggression. Within seconds, Mendoza moved threateningly, attempting to assault Wallace, and then ignored repeated commands from both agents to put his hands down and to cease aggressive conduct. In these few seconds, the three men scuffled as Mendoza acted threateningly and the agents attempted to control him. Ultimately, he was brought to the ground by the agents through the use of lawful compliance techniques. He was then held on the ground, told to relax, and released. Mendoza returned to his cot and resumed talking to Wallace.

The incident was partially captured on a “multiplexer” camera system in use at the Chula Vista station. This equipment features multiple cameras placed throughout the facility, each of which is linked to a VCR in the control room. Because the cameras are on a timed rotation, however, the VCR only records approximately one in every five seconds of action in a given location.

Trial started on November 13, 2002, in Federal District Court for the Southern District of California before Judge Thomas Whelan. Curtin was represented by PORAC LDF panel attorney Patrick Cooney of Gattey Cooney & Baranic LLP. Wallace employed his own attorney, but enjoyed the benefits of the Legal Defense Fund paying the expenses of expert witnesses regarding the use of force and medical evidence.

During trial, Mendoza was exposed as a liar, opportunist and criminal. On cross-examination, he stated the government’s photographs of him, showing no injuries, were forgeries. He took no responsibility for transporting illegal aliens in the trunk of his vehicle. He admitted he lies until he gets caught.

After seven days of trial, the case was sent to the jury. After one hour of deliberation, the jury found Curtin and Wallace not guilty. Immediately after trial, the Border Patrol was notified of the verdicts and a demand was made to reinstate the agents with full back pay and benefits. The Border Patrol waited until they were sent a copy of the verdicts and only then notified the agents that they were to return to work the next day. Both agents reported to work on November 26, 2002, and have been told they will receive all lost wages and benefits.

Both agents are grateful for the support of their fellow Border Patrol agents and the PORAC LDF. Over 99% of all complaints against Border Patrol agents are baseless. Every agent familiar with this case realizes they could have been put through the same nightmare as Curtin and Wallace.

PORAC Legal Defense Administrator Ed Fishman Testimony: Law Enforcement Use of Body Cameras.