Two pieces of news provide a flicker of hope amid the doom and gloom.
Sept. 07--To avoid a possible conflict of interest, federal law enforcement handed three El Paso public corruption cases to New Mexico prosecutors, prompting a call on Thursday to dismiss one indictment and possibly sparking protests from federal prosecutors based in Texas.
Court documents filed Wednesday show that the U.S. Justice Department at first moved corruption cases against former County Judge Dolores Briones, Cirilo "Chilo" Madrid and Ruben "Sonny" Garcia to the U.S. Attorney's Office in New Mexico and then moved those against Madrid and Garcia back to El Paso.
Now Madrid, who is scheduled to go on trial Oct. 1, is trying to find out why his case was handed back and forth between federal prosecutors -- a move that one expert said was unusual.
Madrid also asked on Thursday that his indictment be dismissed on a matter related to the initial appointment of New Mexico prosecutors in his case. He said the assistant U.S. attorney from New Mexico who signed his indictment was never properly appointed to handle Madrid's case in Texas.
Madrid is due in court at 2 p.m. today, but it's unclear whether U.S. District Judge Frank Montalvo will take up his most recent motions during the hearing.
Potential conflicts of interest appear to have prompted decisions by Associate
Deputy Attorney General David Margolis to shuttle cases between the offices. Emailed questions about the possible conflict to Justice Department headquarters in Washington, D.C., and to U.S. attorney's offices in San Antonio and Albuquerque were not answered Thursday.
Briones is the sister of Senior U.S. District Judge David Briones, who hears cases in the same courthouse as Montalvo.
It would be a potential conflict for David Briones to hear cases from U.S. prosecutors in the Western District of Texas while they had an active case against his sister -- even if it was in a different court -- said Peter J. Henning, a law professor at Wayne State University who writes the White Collar Watch column for The New York Times. Before that, Henning worked in the Criminal Division of the U.S. Justice Department.
"You would never want to put the judge in a bad position," he said.
Dolores Briones pleaded guilty last December to her role in a scheme in which she accepted $24,000 in bribes from LKG Enterprises Inc., a company owned by Garcia, in exchange for her support of a $600,000-a-year contract between LKG and the Border Children's Mental Health Collaborative, an entity overseen by the county.
guilty in July in a separate proceeding. He faces up to five years in prison, and he and his company each could have to repay $550,000 -- the amount the company which was paid in 2005 and 2006 and for which the company didn't provide services.
Madrid, an associate of Garcia and longtime CEO of El Paso nonprofit Aliviane Inc., was charged in the same indictment as Garcia. He is accused of receiving $100,000 to produce a 20-page report, passages of which he admitted in a 2010 deposition that he plagiarized from the Internet.
Madrid's attorney, Leon Schydlower, could not be reached Thursday.
But in his court filings Schydlower cites case law and passages in the United States attorney's manual to argue that to disqualify an entire U.S. attorney's office from handling a case is exceedingly rare. He is asking Montalvo to force the Justice Department to turn over all documents related to the decision so the judge can read them and determine whether any must be turned over to Madrid.
"There exist facts then, unknown to (Schydlower) or Mr. Madrid, that generate a disqualification and recusal scenario extraordinarily egregious," Schydlower wrote of the decisions to disqualify the West Texas prosecutors in the cases of Briones, Garcia and Madrid and then to reappoint them to handle Garcia's and Madrid's cases.
In a motion filed Thursday, Madrid is asking that his entire indictment be dismissed because Steve Yarbrough, First Assistant U.S. Attorney for New Mexico, signed the document without being properly appointed to handle the case in the Western District of Texas.
Documents prosecutors did hand over to Madrid say the New Mexico U.S. attorney is responsible for decisions about Dolores Briones, both in the LKG scheme and in the Access HealthSource scandal.
In the Access case, 11 officials were indicted in 2010 on charges that they fraudulently steered more than $100 million in employee health-insurance business from El Paso County and the El Paso, Ysleta and Socorro school districts. Of the 11 charged in the Access indictment, 10 have pleaded guilty.
Federal authorities in New Mexico apparently decided not to charge Dolores Briones in the Access case. They made the decision even though Debra Kanof, a federal prosecutor in West Texas, has said that Dolores Briones admitted taking bribes from Access officials and appointed Larry Medina to an open seat on the County Commissioners Court because he also had pledged to support Access.
Medina has pleaded guilty. Despite having an apparently lesser role in the conspiracy than Dolores Briones, he faces up to 20 years in prison when he's sentenced Feb. 20.
In the LKG case, Dolores Briones faces the same five-year maximum sentence as Garcia. But judging from an appeal for support written in July by a friend, she appears to have signed a nonbinding plea agreement under which she would receive probation.
Henning and another federal-sentencing expert have said that Dolores Briones appears to have gotten unusually generous treatment from federal prosecutors in New Mexico.
Madrid's court filings say it appears that prosecutors in the Western District of Texas were dissatisfied with the Justice Department's decision to move all LKG-related cases to the U.S. attorney for the District of New Mexico.
"Apparently, (the Western District of Texas) appealed the Department of Justice's decision to recuse it, and (the Western District of Texas) sought and was granted a rescission of 'the recusal of the United States Attorney's Office of the Western District of Texas from the investigation and prosecution of Dolores Briones, Cirilo "Chilo" Madrid, Sonny Garcia and LKG Enterprises Inc.,' " the pleading filed by Madrid on Wednesday says.
It also says prosecutors waited until the case was well under way to tell Madrid that the Justice Department had ever determined it might have a conflict in Madrid's case.
"The United States never disclosed that the Department of Justice had previously determined that (the Western District of Texas) had an actual or potential conflict of interest in this case until July 31, 2012, only two months before the trial of this matter," the document says.
Documents released by prosecutors don't say when the Justice Department decided to move Madrid and Garcia's case back to the West Texas prosecutor's office.
Henning said the Justice Department probably moved investigation and prosecution of all three cases to New Mexico out of an abundance of caution. Officials might then have determined that due to Dolores Briones' guilty plea -- which happened just days before Madrid and Garcia were indicted -- it would be OK to move the remaining cases back to West Texas, where prosecutors were closer to the scene of the alleged crime.
"The Department of Justice is trying to be careful," Henning said, noting some recent debacles involving high-profile defendants. "They can't risk another disaster."
Marty Schladen may be reached at email@example.com; 546-6127.
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