July 12, 2009
Iran/Contra whistleblower Celerino Castillo is being sent directly to jail in the aftermath of his encounter with the buzz saw of Texas justice.
Despite being represented by an attorney, Robert E. De La Garza, who has been suspended by the State Bar of Texas for misapplying clients’ funds, the federal judge in Castillo’s case, at the urging of the government prosecutor, determined that there is no evidence of Castillo’s defense being tainted by the stink of ineffective assistance of counsel.
The fact that the same attorney’s son is facing federal gun charges, similar to those brought against Castillo, also has been deemed by the judge to be little more than an “inference” of a conflict of interest on the part Castillo’s attorney. Hence, the judge, at a hearing held Friday, July 10, 2009, in federal court in San Antonio, Texas, ruled that Castillo is not likely to succeed in the appeal of his conviction now pending before the Fifth Circuit U.S. Court of Appeals.
As a result, the judge — after extending in mid-February Castillo’s report-to-prison date by some four months due to the very same ethical concerns raised about his attorney — did an about face at the July 10 hearing and ordered that Castillo report to prison on July 30 — to begin serving a 37-month sentence for violating federal firearm regulations, a sentence enhanced due to the judge’s apparent belief that Castillo sold weapons in Mexico.
Castillo, a self-proclaimed gun enthusiast who frequents gun shows, concedes he did sell some legally purchased guns absent the proper federal paperwork. However, he stresses none of those weapons were sold to prohibited purchasers (i.e., convicted felons) and he vehemently denies that any of those guns were sold in Mexico — nor is there any convincing evidence to the contrary, beyond prosecutorial inference, that has been produced by the state.
Castillo, as well as other law enforcers who spoke with Narco News, contend the federal prosecutor in the case turned Castillo’s paperwork violation (selling legally purchased weapons without a firearms-dealer permit) into a federal arms-trafficking case as payback for his whistleblowing activity — for exposing the CIA and White House’s complicity in arms- and narco-trafficking as part of the Iran/Contra scandal that played out during the administration of Ronald Reagan and George H.W. Bush.
The key to the severity of the prison sentence meted out to Castillo — who is a former DEA agent and decorated Vietnam veteran with no prior criminal record — is that the prosecutor in his case argued, and the judge seemed convinced, that Castillo was likely trafficking weapons in Mexico — and by implication to members of narco-trafficking cells.
But Narco News recently obtained documents (letters now filed with the Department of Justice) that allege the judge in Castillo’s case was mislead about the trafficking charges by the prosecutor in the case — which was initiated under the reign of U.S. Attorney Johnny Sutton (a “dear friend” of former president George W. Bush), who recently left the post to take a job in the private sector.
Those documents also show that after the federal judge, W. Royal Furgeson Jr., was made aware of that allegation, he chose to chastise Castillo for bringing those charges to his attention outside the proper channels. Subsequently, Furgeson then revoked Castillo’s bail at the July 10 hearing and ordered him to report to prison to serve out an extreme sentence based on the allegedly misleading — possibly perjured — statements advanced by the federal prosecutor, Mark T. Roomberg.
On Oct. 22, 2008, Judge Furgeson sentenced Castillo to 37 months in prison after Castillo accepted his second plea deal with the prosecutor, Roomberg. The first set of charges against Castillo had to be dismissed because the government determined after the fact that they had applied the law improperly.
Castillo says he agreed to plead out a second time (to dealing firearms without a license) under the threat of multiple additional counts being brought against him by the government if he did not sign on the dotted line, and because his attorney, De La Garza, assured him that under the new plea deal he would retain his DEA and other benefits and he would receive a light sentence as a first-time offender — likely probation.
However, at the sentencing hearing on Oct. 22, 2008, after that second plea deal was signed, the prosecutor Roomberg came at Castillo with teeth bared, arguing that not only did Castillo sell firearms without a license, but that he likely was engaged in illegal arms trafficking — indicating to the judge that Castillo had been less than cooperative in disclosing to whom he had sold the weapons.
In fact, Castillo says the government had no evidence that he had sold guns to anyone, other than his own admission, and he stresses that his lawyer, De La Garza, did provide Roomberg with the full name of the individual who purchased the guns.
Castillo lays all of this out in a letter sent to Judge Furgeson (dated May 1, 2009, and recently obtained by Narco News). That same letter, including evidence to back up the allegations, Castillo says, also has been delivered to the Department of Justice’s Office of Inspector General and to the DOJ’s Civil Rights Division. In addition, Castillo says he wrote a letter to Attorney General Eric Holder making him aware of the allegations of prosecutorial misconduct in his case as well.
From Castillo’s letter to the judge:
ROOMBERG made a federal case that I had not documented any names of the people [to whom] I had sold guns. I was given 4 point [sentencing enhancement] for trafficking because ROOMBERG had once again lied.
… My attorney once again assured me that there was no reason why Your Honor [Furgeson] would not place me on probation, because I had no previous criminal record plus my health issues [a chronic heart condition and Post Traumatic Stress Disorder] would be brought under consideration. He stated that in the worst scenario, I would get one year, (home confinement)….
… ROOMBERG also knew exactly whom the guns went to because the [federal] agents had followed me when I delivered the shotguns. Two agents, from two different agencies [ATF and ICE] have written reports [REPORT OF INVESTIGATION] to that effect with the full name and telephone numbers of the individual who took custody of the guns. Now may there be no mistake that the individual who took custody of the guns did in no way shape or form break the law by taking custody of the guns. He was not a prohibited person and the government knew this to be a fact.
… I know that if Your Honor had heard the truth; I would have probably fallen into the probation level of the federal guidelines. Now I can prove that ROOMBERG lied to Your Honor, with DE LA GARZA’S handwritten notes and the two agents’ reports.
Castillo explains that in De La Garza’s notes from a meeting he had with Roomberg on June 26, 2008, is the name of the individual who purchased the weapons. Castillo says De La Garza told him that Roomberg was provided with that individual’s full name and address at that meeting, as the attorney’s notes reflect, and that Roomberg that day ran the individual’s address through the Internet to generate a map of that address.
In addition, Castillo claims the federal agents in his case seized his cell phone, and that the individual’s contact information was in the contact list on that phone, as well as a record of calls made to the individual. He contends Roomberg also would have had access to that information.
In his letter to Judge Furgeson, Castillo includes excerpts from Roomberg’s argument before the judge at the Oct. 22, 2008, sentencing hearing, which, he claims, proves that Roomberg misled the judge.
From the Oct. 22 hearing transcript, according to Castillo’s letter to Judge Furgeson:
The defendant — and normally I don’t discuss this in open court – but the defendant raised the issue that he spoke with us and told us the person who he bought and sold most of these guns to. The defendant gave us a nickname and a general area, nothing that we can do anything with.
… We would love to know who these people were; we would love to have had Mr. Castillo tell us more than just a nickname and a general area where this person lived. He didn’t. And if he [is] dealing all these firearms with this person and can’t give us more than a nickname, then I don’t know how he’s identified that person.
… This person who has dealt the majority – what he just said in court, the majority of these guns he only knows by a nickname and a general area where they live and… so it’s our position that he had reason to believe these were going to be – the transfers were unlawful or that who they were going to would … dispose of firearms unlawfully… Again, we’re talking about the defendant who’s dealing these guns out of McAllen right there on the border. The types of guns are the FN 5.7 and the P 90, which are the assault rifles.
Castillo, in the letter to Judge Furgeson, makes the following allegation concerning Roomberg’s representations [above] to the judge at the Oct. 22 sentencing hearing:
ROOMBERG addressed to the court that the government had no idea who the guns went to and that they only had a nickname to go by. ROOMBERG intentionally, knowingly, and recklessly lied to the court. ROOMBERG lied about the P90 rifle. This weapon is nowhere to be found in my case. He just plain made up this allegation.
As a result of Roomberg’s allegedly misleading statements to Judge Furgeson, Castillo argues, the judge was led to believe that some of the guns at issue were, in fact, sold to narco-traffickers in Mexico, resulting in the judge imposing a much more severe sentence — which, besides the 37 months jail term, also resulted in Castillo losing his DEA and other benefits, despite Roomberg and De La Garza’s promises to Castillo to the contrary.
De La Garza told Narco News in a recent phone interview that if he were called to testify in a hearing about Roomberg’s actions, he would testify, that, in his opinion, “Roomberg misrepresented the facts at the sentencing and the judge was mislead” as a result.
And Castillo, in his letter to Judge Furgeson [as well as those delivered to DOJ], makes clear that he believes Roomberg’s actions in his case do merit an investigation:
Sir, there are several serious issues that needs to be address because I was told that they would not be address in my appeal process. My public defender [Judy F. Madewell] has decided to appeal my case on the grounds of “ineffective representation.”
… One of the most significant concerns is Assistant United States Attorney Mark ROOMBERG’S prosecutorial misconduct.
… In the last hearing, you commented that it was despicable for someone to take guns into Mexico, which I certainly agree and it was well taken. However, what I find most despicable, in my own opinion, is that ROOMBERG, an officer of the court, and who took an oath to protect the Constitution of the United States, made a mockery of your court.
On April 10, 2009, my official complaint against the government was hand carried by two veteran’s organization, Americas Last Patrol and a member of American G-I Forum, to the Office of Inspector General and the Civil Rights Division at the Department of Justice. I am requesting for an inquiry of how my case was handle by the prosecution. However, I am still fearful that the old guard is still present and will protect ROOMBERG.Narco News previously attempted to contact Roomberg for comment on Castillo’s case, leaving a message on his answering machine. To date, Roomberg has not returned the call.
You have an appointed lawyer to represent you. You must communicate to me through her. It is not proper to write directly to me.
Castillo’s attorney, Judy Madewell, and Roomberg were cced a copy of Judge Furgeson’s reply to Castillo.
Castillo points out that the only reason he wrote directly to the judge in his case is because his attorney, Madewell, declined to bring up the issue of prosecutorial misconduct in his appeal or in proceedings before Judge Furgeson.
Madewell declined to comment for this story.
Process over truth
At a hearing held before Judge Furgeson on Feb. 19, 2009, Roomberg again alleged that Castillo sold guns “to people that he didn’t know and couldn’t even really identify” and also alleged that two of the guns sold by Castillo “have now been found in Mexico.” Roomberg provided no serial numbers for those weapons and alleged in his brief for the court that one of those weapons was a PS 90 assault rifle.
Madewell, in her rebuttal at that hearing, pointed out to the court that in “the government’s response [brief] they mention two guns, one of which was an FN PS 90 assault rifle, but if you look in [Castillo’s] plea agreement or the indictment, there’s no such weapon indicated [included].”
Castillo says the PS 90 is an earlier version of the FS 2000 rifle, which is referenced in the indictment. However, he claims if that is the weapon Roomberg claims was found in Mexico, then he can prove the prosecutor again mislead the court.
“That rifle is still in the United States, and if there is an official inquiry into this matter, that weapon will be produced,” Castillo says.
And again, at the recent hearing on July 10, in which Castillo’s bail was revoked and the judge ordered him to report to prison on July 30, Roomberg again made statements that seem intended to convince the judge that Castillo had sold guns to narco-traffickers in Mexico.
“It is bad for the United States for the defendant [Castillo] to remain out n bond when he is guilty … and he sold guns that are illegal and dangerous … and used to shoot people with body armor, police, down there [in Mexico] who are fighting the war on drugs,” Roomberg stated at the July 10 hearing.
But in the courtroom that day, the issue of prosecutorial misconduct was not on the table. The judge was considering only whether Castillo should remain free on bond based on what Castillo’s attorney, Madewell, had raised as an issue in her brief now pending before the Fifth Circuit U.S. Court of Appeals, and that was the issue of the alleged misconduct by Castillo’s attorney, De La Garza.
The judge conceded that De La Garza had never informed the court of the fact that, while representing Castillo, he was facing disciplinary action from the Texas State Bar for allegedly misappropriating clients’ funds — and that his law license was to be suspended effective Nov. 1, 2008. The judge also conceded that an “inference” of a conflict of interest exists due to the fact that De La Garza’s son, Andrew, was facing federal firearms charges at the same time the attorney was representing Castillo — and that at least one of the agents involved in Castillo’s case also was active in the son’s case (though Castillo claims it was, in fact, two agents).
However, in the end, Judge Furgeson determined that there simply was not enough evidence in the existing court record to show that there was an “actual” conflict of interest that would lead the appeals court to find that De La Garza provided ineffective assistance of counsel.
“I believe it is not likely that [Castillo’s] appeal [before the Fifth Circuit] will result in a reversal or new trial based on the record as it exists,” Furgeson said at the July 10 hearing. “… Ms. Madewell has made a heroic effort, but she is hamstrung because of the record [in the case]. Therefore, I’m going to revoke the bond, and I’m going to set the report date [to prison for Castillo] for July 30. There will be no further bond for the appeal.”
And so it ends for Castillo. He must now report to the federal penitentiary at the end of the month, and fight on with his appeal behind bars — absent his benefits and under the threat of harm that confronts all former law enforcement agents behind prison walls.
But the allegations of prosecutorial misconduct in his case are surely not resolved.
If, as Castillo claims, De La Garza did provide Roomberg with the full name and address of the individual who purchased the weapons from Castillo, and that individual is a U.S. citizen who was not prohibited from making those purchases, as Castillo contends, then it appears Roomberg likely did mislead the court.
On the other hand, if Roomberg argues that De La Garza failed to provide that name (which appears in his attorney notes), then it would seem that Roomberg is establishing a fact that would lend credence to the claim now on appeal before the Fifth Circuit — that De La Garza did, in fact, provide Castillo with ineffective assistance of council. (Roomberg clearly convinced the judge to dole out a stiff sentence to Castillo based on the contention that he did not cooperate with the prosecution, that he did not provide the full name of the purchaser, and that he likely did traffic weapons in Mexico).
It seems to be a Catch 22 for the prosecution, but in the U.S. justice system, at least in the Western District of Texas, the truth seems to matter less than protecting the process.
And in this case, to date, Castillo appears to be little more than another cog on the conveyor belt of that tortured process, destined for the buzz saw — another stat in the prosecution’s hat regardless of the facts.
Now, that’s change we can believe in.
Stay tuned ….