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Uncertain future for border prosecution program

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CHRISTOPHER SHERMAN | June 19, 2013 03:19 PM EST | AP

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FALFURRIAS, Texas — On an October afternoon in 2009, a Dallas man arrived at a highway checkpoint about an hour north of the U.S.-Mexico border. Inside the gas tank of his pickup truck, agents found 99 pounds of marijuana.

When the Border Patrol called the Drug Enforcement Administration, the agency said it was not interested because the bust wasn't big enough. So the 32-year-old suspect was passed to the local sheriff and pleaded guilty to drug possession in state court. He got a suspended sentence and paid a fine.

If the same incident happened again today at the checkpoint south of Falfurrias, the man would lose his drugs but probably not be charged at all.

Since the fall of 2010, prosecutors in tiny Brooks County, population 7,223, have refused to take such cases because of a debt dispute with the Justice Department involving a long-running program that reimburses border-state prosecutors for the cost of pursuing some drug offenders. Other border counties are frustrated too, because the government has proposed eliminating the reimbursements.

Now prosecutors from Texas to California fear the lack of federal help could allow many drug suspects to go free.

The reimbursement program was supposed to allow local prosecutors to help federal authorities go after suspected criminals without squeezing their offices financially.

In fiscal year 2009, the Justice Department reimbursed prosecutors in Texas, New Mexico, Arizona and California for more than 10,000 cases through what was then called the Southwest Border Prosecution Initiative. But the money stopped coming for Brooks County after an audit showed the county was overpaid by nearly $2 million. The funding for all other border prosecutors could dry up as well.

Armando Barrera, the former Brooks County district attorney who first stopped accepting the cases, once questioned the federal prosecutor in charge of the government's Corpus Christi office about the cases he used to take.

"I asked him, `Well, what are you guys doing with the checkpoint cases?' and he said, `Well, we're just turning them lose,'" Barrera recalled.

That doesn't sit well with John Hubert, district attorney in neighboring Kenedy County, which is home to a similar Border Patrol highway checkpoint.

"If the feds cut them loose ... the first thing that is going to happen is the drug dealers are going to know `Hey, guess what? If you go through there with less than 250 pounds, you get cut loose,'" Hubert said.

Hubert estimated his office gets about 245 cases a year from the checkpoint. The Falfurrias checkpoint generated 158 cases for the Brooks County district attorney in 2009, according to records obtained through a Freedom of Information Act request.

Poor, rural counties can't afford to subsidize the federal government's prosecution efforts by paying for the cases themselves, Hubert said. But at the same time, he worries about the message sent by letting suspects go.

The U.S. attorney for the Southern District of Texas, Kenneth Magidson, said all the cases brought to his office from the Falfurrias checkpoint are reviewed. Last month, his office won another conviction against a drug-trafficking ring that had tons of marijuana seized at that checkpoint.

Will Glaspy, who oversees the DEA's operations in an area of South Texas that includes the checkpoint, said the DEA continues to process those cases even if suspects are not charged. And if any of the smugglers are arrested again, they could be prosecuted for the cumulative amounts.

The cooperative arrangement dates back to 1994, when border district attorneys and federal prosecutors agreed to share some of the drug caseload.

In San Diego County, home to the Border Patrol's busiest checkpoints, an agreement was signed that year. Local authorities would pursue low-level "mules" without criminal records who were caught by the feds with smaller drug amounts.

"Those were the cases the U.S. attorney was not prosecuting," said Rachel Cano, now an assistant chief for the San Diego County district attorney. Ninety percent pleaded guilty and got probation, she said.

But by 1998, local prosecutors on the border had banded together to tell the federal government that they couldn't continue accepting the cases without compensation.

Eventually, Congress budgeted money for reimbursement. Last year, San Diego County received nearly $2.7 million from the program for handling 1,335 cases, more than any other local prosecutor's office.

One of those who pushed for the reimbursement program was longtime El Paso District Attorney Jaime Esparza. If reimbursement were halted, Esparza said, he and other border prosecutors would have to stop accepting cases from federal authorities.

"The best part of the program is it allows the federal government to prosecute the more complex, the more serious cases" and still provides for the prosecution of lesser drug offenders in state court, Esparza said.

Getting money for the reimbursement program has been an annual fight. The funding reached $31 million in 2011 but fell to $10 million in 2012 combined with similar efforts along the northern border. The program was left out of the White House's 2013 budget request.

However, a comprehensive immigration reform bill being debated in the Senate calls for funding through 2018.

Brooks County District Judge Richard Terrell handled the Dallas man's case and every other checkpoint matter that came through the county courthouse during his years on the bench. He said the practice that county commissioners once saw as an easy revenue source became a financial burden.

Costs such as transporting probation violators back to the county or tracking down fugitives swamped the system. An early promise by federal authorities to send only first-time offenders who would be eligible for probation was repeatedly compromised, he said.

"This is a poor county," Terrell said. "They do not have the resources, and it's completely unrealistic to think that this county can handle those things."

Looming in the background is the $1.9 million overpayment revealed by a 2007 federal audit. The Justice Department does not seem willing to forgive the debt, and the county has held firm that it needs the money.

Carlos Garcia, who just began serving as Brooks County district attorney in January, says the reimbursement issue must be solved before he can resume taking checkpoint cases, but unlike Terrell, he wants them.

"People need to be held accountable for whatever crimes they commit," Garcia said. If the county had an arrangement with the federal government to handle some cases, then "at least they're getting justice in one of the courts, the state side or the federal side."