FEDagent - Federal Law Enforcement & Homeland Security News

July 29 - August 5, 2010

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Bill to Reduce Sentencing Disparity between Crack and Powder Cocaine Passes House, Goes to President for Signature

An historic, bipartisan bill to curtail the sentencing disparity between crack and powder cocaine was passed by the U.S. House of Representatives Wednesday afternoon. The Fair Sentencing Act of 2010, authored by Assistant Senate Majority Leader Dick Durbin (D-Illinois), will reduce the current 100:1 sentencing disparity to 18:1. Cosponsored by Judiciary Committee Chairman Patrick Leahy (D-Vermont) and Ranking Member Jeff Sessions (R-Alabama), the Senate unanimously passed the measure in March. The bill (S. 1789) now goes to the President, and he is expected to sign it into law.

"We have talked about the need to address the crack -powder sentencing disparity for far too long. Today's passage of the Fair Sentencing Act finally addresses one of the greatest injustices in our war on drugs," Durbin said. "Drug use is still a serious problem in America and we need tough legislation to combat it. But in addition to being tough, our drug laws must be smart and fair. This bipartisan bill is both."

Under current law, possession of five grams of crack cocaine (roughly the weight of two sugar cubes) triggers a mandatory minimum five-year prison sentence, while trafficking 500 grams (approximately one pound) of powder cocaine triggers the same sentence. The so-called 100:1 ratio has been in place since 1986.

The dramatically higher penalties for crack have disproportionately affected the African American community: more than 80 percent of those convicted for federal crack offenses. Law enforcement experts say this racial disparity undermines trust in our criminal justice system and has a corrosive effect on the relationship between law enforcement and minority communities. Former Bush Administration DEA head Asa Hutchinson has testified, "Under the current disparity, the credibility of our entire drug enforcement system is weakened." The U.S. Sentencing Commission has said even "perceived improper racial disparity fosters disrespect for and lack of confidence in the criminal justice system."

The crack trade and the trade in cocaine powder are frequently associated with violence. Yet, crack-related violence has decreased significantly since the 1980's and today 90 percent of crack cocaine cases do not involve violence, Durbin says. Cases that involve violence are subject to increased sentences, including a mandatory minimum for use of a weapon in connection with a drug trafficking offense.

The Fair Sentencing Act, as introduced, would have completely eliminated the disparity, treating crack and powder cocaine equally. However, in March, Senator Durbin and Chairman Leahy negotiated an agreement with Senators Jeff Sessions (R-Alabama), Lindsey Graham (R-South Carolina), Tom Coburn (R-Oklahoma), and Orrin Hatch (R-Utah) to achieve a unanimous committee vote.

The compromise significantly increases fines for drug traffickers and mandates that the U.S. Sentencing Commission significantly increase enhancements for a number of aggravating factors. This tough new language would apply to all drug offenses and not just those involving crack or powder cocaine.

This legislation also would eliminate the mandatory minimum sentence for simple possession of crack cocaine (the only mandatory minimum sentence for simple possession of a drug by a first-time offender). This marks the first time Congress has repealed a mandatory minimum since the Nixon administration.

DHS Launches First-Of-Its-Kind Campaign to Combat Human Trafficking

The Department of Homeland Security (DHS) has launched a Department-wide initiative called the "Blue Campaign" designed to combat human trafficking through enhanced public awareness, victim assistance programs, and law enforcement training and initiatives.

"The battle against human trafficking is a shared responsibility involving the Department's federal, state, local and tribal law enforcement partners, non-profit and non-governmental organizations, governments around the world and communities across the nation," said DHS Secretary Janet Napolitano. "With the Blue Campaign, we seek to shine a light on a crime that thrives in the shadows, bring traffickers to justice, and assist victims in communities across the nation."

The Blue Campaign was officially launched last Thursday by U.S. Immigration and Customs Enforcement (ICE) Director John Morton, U.S. Customs and Border Protection (CBP) Commissioner Alan Bersin, U.S. Citizenship and Immigration Services Director Alejandro Mayorkas, Federal Law Enforcement Training Center (FLETC) Deputy Director Ken Keene and Alice Hill, Senior Counselor to Secretary Napolitano, underscoring the unified effort to prevent human trafficking, assist victims, and hold traffickers accountable by bringing together the Department's diverse resources and expertise under one initiative.

To help citizens learn to identify and properly report indicators of human trafficking, the Department is launching public outreach tools that include social media, multilingual public awareness campaigns, and a new, comprehensive one-stop website for the Department's efforts to combat human trafficking at www.dhs.gov/humantrafficking.

The Blue Campaign also features new training initiatives for law enforcement and DHS personnel, enhanced victim assistance efforts, and the creation of new partnerships and interagency collaboration, including the deployment of additional victim assistance specialists and specialized training for law enforcement personnel.

The Blue Campaign's name and symbol were chosen by the Department to evoke the "thin blue line" of law enforcement, as well as the global anti-human trafficking symbols the Blue Blindfold, produced by the United Kingdom Human Trafficking Center, and the Blue Heart, developed by the United Nations Office of Drugs and Crime, to help raise international awareness about this issue.

A fact sheet detailing the numerous aspects of the campaign across the Department is available on the DHS website. Further information on human trafficking can also be found on the DHS website.

Bill to Extend Port Protections, Anti-Terrorism Act Introduced in Senate

A bipartisan bill to extend the groundbreaking port security programs now in place in the United States was introduced in the Senate on Tuesday. The measure, "The SAFE Port Reauthorization Act of 2010," extends anti-terrorism protections designed to safeguard the nation's critical shipping lanes and seaports from attack and sabotage.

The legislation was introduced by Senators Susan Collins (R-Maine), Ranking Member of the Senate Homeland Security and Governmental Affairs Committee, and Patty Murray (D-Washington). The pair coauthored the original SAFE Port Act in 2005; it was enacted the following year.

"The scope of what we need to protect is broad," said Senator Collins. "America has 361 seaports - each vital links in our nation's transportation network. Our seaports move more than 95 percent of overseas trade. In 2009, U.S. ports logged 68,000 ports-of-call by foreign-flagged vessels, bringing 9.8 million shipping containers to our shores.

"Because seaports are flourishing, our harbors operate as vital centers of economic activity; they also represent vulnerable targets. An attack on one or more U.S. ports could cause great loss of life and large numbers of injuries; it could damage our energy supplies and infrastructure; it could cripple retailers and manufacturers dependent on incoming inventory; and it could hamper our ability to move and supply American military forces fighting against the forces of terrorism."

Senator Murray said, "As long as terrorists continue trying to harm our country, we can't afford to let our guard down at our nation's ports. We need to extend the SAFE Port Act to make sure our communities, families, and economy remain protected. This is especially important for my home state of Washington, where families and businesses depend on our ports remaining safe and open for business."

Among other things, the bill would reauthorize the SAFE Port Act maritime cargo security programs that have proven to be successful. These include:

The Automated Targeting System that identifies high-risk cargo;
The Container Security Initiative that ensures high-risk cargo containers are inspected at ports overseas before they travel to the United States; and
The Customs-Trade Partnership Against Terrorism, or C-TPAT, that provides incentives to importers to enhance the security of their cargo from point of origin to destination.

The bill would also strengthen the C-TPAT program by providing new benefits, including voluntary security training to industry participants and providing participants an information sharing mechanism on maritime and port security threats, and by authorizing Customs and Border Protection to conduct unannounced inspections to ensure that security practices are robust. The Senators say that the cooperation of private industry is vital to protecting supply chains, and C-TPAT is a necessary tool for securing their active cooperation in supply chain security efforts.

Further, the bill would extend the competitive, risk-based, port security grants that have provided $1.5 billion to improve the security of U.S. ports. The bill also would expand the America's Waterway Watch Program to promote voluntary reporting of suspected terrorist activity or suspicious behavior against a vessel, facility, port, or waterway.

The bill also protects citizens from frivolous lawsuits when they report, in good faith, suspicious behavior that may indicate terrorist activity against the United States, building on a 2007 homeland security law that encourages people to report suspicious transportation activity.

The legislation enhances research and development efforts to improve maritime cargo security with demonstration project to examine the use of composite materials in cargo containers to improve container integrity and to deploy next generation sensors.

Finally, the measure addresses the difficulties in administering the mandate of x-raying and scanning for radiation all cargo containers overseas that are destined for the United States by July 2012. Since that technology is not yet perfected, the bill would eliminate the deadline for x-raying 100 percent of containers if the Secretary of Homeland Security certifies the effectiveness of individual security measures of that layered security approach. The lawmakers say that this is a more reasonable method to securing cargo until a new method of x-raying containers is proven effective.

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ICE Enforcement Surges Net 87 Convicted Criminal Aliens and Fugitives

Seventy-five foreign nationals with criminal records and 12 fugitives were arrested in the Commonwealth of Virginia and Washington, D.C., following two enforcement surges this summer by U.S. Immigration and Customs Enforcement (ICE). During the two operations in June and July, the last of which concluded Wednesday, ICE officers located and arrested 75 criminal aliens with prior convictions for a variety of crimes, including robbery and narcotics possession with intent to distribute and 12 immigration fugitives. These special operations involved more than 70 officers from ICE and the U.S. Marshals Service.

"A top priority for ICE is to locate and arrest convicted criminal aliens and ultimately remove them from our country in a safe and humane manner," said Washington Field Office Director for ICE's Enforcement and Removal Operations Henry Lucero. "Those who come to the United States to prey upon communities in Virginia and Washington, D.C. will be prosecuted for their crimes and ultimately returned to their home countries. The results of these operations demonstrate ICE's commitment to that principle."

The Northern Virginia area accounted for the largest number of arrests made during the operation, where a total of 57 convicted criminal aliens and fugitives were arrested. Twenty-eight criminal aliens and fugitives were arrested in southern and central Virginia.

Of the 87 arrested, 74 were men and 13 were women. They represent more than 19 different nations, including countries in Latin America, the Middle East, the Caribbean and Africa.
Some of those arrested during this operation include:

Jorge Garcia-Alberto, 46, a Honduran national, who illegally re-entered the United States after being previously removed. He was arrested in Herndon, Virginia, on a criminal warrant for re-entry. His criminal history includes felony convictions for sale of marijuana, as well as misdemeanor burglary, theft and DUI. Garcia-Alberto is in ICE custody and may face criminal prosecution for re-entry to the United States.
Oscar Montoya, 30, an El Salvadoran national, an immigration fugitive and a member of MS-13. He was arrested in Centreville, Virginia, for immigration violations. His criminal history includes felony drug convictions. He is in ICE custody pending removal from the United States based on an outstanding order from the immigration judge.
Robert Cummings, 49, of Guyana, a legal permanent resident of the United States, was arrested in Richmond for immigration violations. His criminal history includes felony convictions for possession of a weapon and intent to distribute cocaine. He has been placed in removal proceedings.

Because of their serious criminal histories and prior immigration arrest records, six of those arrested during the enforcement surges will face further federal prosecution for reentering the country illegally after a formal deportation.

The foreign nationals detained during these operations who are not being criminally prosecuted will be processed administratively for removal from the United States. Those who have outstanding orders of deportation, or who returned to the United States illegally after being deported, are subject to immediate removal from the country. The remaining aliens are in ICE custody awaiting a hearing before an immigration judge, or pending travel arrangements for removal in the near future.

These special enforcement actions were spearheaded by ICE's Fugitive Operations Program, which is responsible for locating, arresting and removing at large criminal aliens and immigration fugitives - aliens who have ignored final orders of deportation handed down by the nation's immigration courts. ICE's Fugitive Operations Teams (FOTs) give top priority to cases involving aliens who pose a threat to national security and public safety, including members of transnational street gangs and child sex offenders.

The officers who conducted this week's special operation received substantial assistance from ICE's Fugitive Operations Support Center (FOSC) located in South Burlington, Vermont. The FOSC conducted exhaustive database checks on the targeted cases to help ensure the viability of the leads and accuracy of the criminal histories. The FOSC was established in 2006 to improve the integrity of the data available on at large criminal aliens and immigration fugitives nationwide. Since its inception, the FOSC has forwarded more than 550,000 case leads to ICE enforcement personnel in the field.

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John D. Bennett to Serve as New National Clandestine Service Chief, CIA Announces

Last week, CIA Director Leon E. Panetta announced the appointment of John D. Bennett to be the next head of the National Clandestine Service. Bennett will succeed Michael J. Sulick, who is retiring.

"Every CIA Director relies on the wisdom, experience, and friendship of an exceptionally talented senior leadership team," Panetta said in a message to Agency employees. "I have been very fortunate to have Mike Sulick on mine. As head of our National Clandestine Service for the past three years, he has guided complex operations under some of the most difficult circumstances imaginable. Our officers have had tremendous success against the full range of national security challenges, including terrorists, weapons proliferators, drug traffickers, rogue states, and hostile intelligence services.

"That record is, to Mike and everyone else familiar with it, a source of deep and enduring pride. I knew that he had come out of retirement in 2007, and that he would not be here forever. So when Mike told me a while back that he wanted to retire again this summer, I had to agree that he had more than earned it. Mike's love of his Agency and his country are clear to all who have served with him over the decades. His expertise, judgment, courage, and candor have made all the difference."

Bennett, who will take over Sulick's position, joined the Agency in 1981, after service in the Marine Corps. He has spent most of his career in the foreign field, including four tours as Station Chief.

"John has impeccable credentials at the very core of intelligence operations - espionage, covert action, and liaison," Panetta said. "He has been at the forefront of the fight against al-Qa'ida and its violent allies. We are fortunate to have a number of very gifted leaders within the NCS who are doing a great job of protecting our nation. John brings a unique set of talents to this position; he knows the topics and regions that are likely to shape our security agenda in the years ahead. But there is much more to it than that. He also understands the hardships and benefits of tough jobs, and he knows - in any environment - the mix of skills, capabilities, and partners that successful operations demand."

Bennett's senior positions at Headquarters include Chief of Special Activities Division, Deputy Chief of Africa Division, and Deputy Director of the NCS for Community HUMINT.

"John is an outstanding leader, devoted to the mission and those who get it done," Panetta stated. "He says what he thinks and he does what he says. I trust him, and I rely on him. He has a keen sense of the risks and opportunities inherent in every operational activity. He is supremely qualified to guide our National Clandestine Service to further success. On behalf of everyone at CIA, Michael Morell and I thank and congratulate John for taking this critical post.
There is no finer espionage service than the one he is about to lead."

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Supreme Court Limited the Application of the Honest Services Statute to Avoid Constitutional Vagueness

In a Supreme Court decision, Skilling v. U.S., issued just before the Court's summer recess, the Court decided the issue of whether the honest-services statute, which is widely used by prosecutors to charge defendants in corruption cases, is unconstitutionally vague. The Court decision stated that it "now hold[s] that §1346 [the honest-services statute] criminalizes only the bribe-and-kickback" schemes. The Court also determined that the petitioner's conduct in this case, a former Enron executive, did not fall within the honest services statute's compass.

This case involves the petitioner, Jeffrey Skilling, a longtime Enron officer and Enron's chief executive officer from February until August 2001 when he resigned. Less than four months after Skilling's resignation, Enron crashed into bankruptcy and its stock value plummeted. The government conducted an investigation on Enron and found an elaborate conspiracy involving Enron propping up its stock prices by overstating the company's financial well-being. The government indicted Skilling and two other Enron executives for engaging in a scheme to deceive investors about Enron's true financial performance. One of the counts of Skilling's indictment charged him with conspiracy to commit "honest-services" wire fraud, 18 U.S.C. §§371, 1343, 1346, "by depriving Enron and its shareholders of the intangible right of his honest services," along with charges of security fraud, wire fraud, making false representations to Enron's auditors, and insider trading. A jury found Skilling guilty of 19 counts, including the honest-services fraud charge. Skilling appealed to the U.S. Court of Appeals for the Fifth Circuit to claim in part, that the honest-services statute should be invalidated as unconstitutionally vague. The Court of Appeals affirmed the lower court decision. The Supreme Court granted certiorari.

To place Skilling's claim that § 1346 is unconstitutionally vague in context, the Court reviewed the origin and subsequent application of the honest-services doctrine. The Court found that over time, courts applied the honest services doctrine to a private employee who breached his allegiance to his employer, often accepting bribes or kickbacks. Looking at the Congressional intent of the statute, the Court determined that construing the honest services statute to extend beyond that core meaning of accepting bribes or kickbacks "would raise the due process concerns underlying the vagueness doctrine."

The Supreme Court held that prosecutors have stretched too far this federal statute, that makes it a crime to deprive the public or a company of the "intangible right of honest services." The Court held that the statute should be limited to reach schemes to defraud involving only bribes or kickbacks, not the self-dealing or conflict-of-interest schemes previously prosecuted.

The Court ultimately found that Skilling did not violate § 1346 because the government had "charged Skilling with conspiring to defraud Enron's shareholders by misrepresenting the company's fiscal health to his own profit, but the Government never alleged that he solicited or accepted side payments from a third party in exchange for making these misrepresentations." Thus, the Court determined that because Skilling's alleged misconduct entailed no bribe or kickback, it did not fall within § 1346's proscription. Therefore, the Court affirmed in part and vacated in part.

The case is Skilling v. U.S., No. 08-1394, dated June 24, 2010.

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FLEOA Fights For Injured LEO's at Congressional Hearing
by The Federal Law Enforcement Officers Association (FLEOA)

On July 21, 2010, FLEOA National President Jon Adler testified at a House Subcommittee on Federal Workforce, Postal Service and the District of Columbia hearing entitled, "Are Federal Agencies Playing it Safe and Protecting Federal Workers." Adler's testimony targeted the committee's question, "How well the Federal Employees' Compensation Act is meeting the needs of injured workers in high-risk occupations" (see FLEOA'S full testimony at www.fleoa.org). In his testimony, Adler identified five FLEOA member cases that illustrate the severe "financial and emotional duress" injured federal law enforcement officers have endured. To wit, Adler discussed the Office of Workers Compensation Program's (OWCP) failure to process claims effectively that were filed by Special Agent Mike Vaiani, Inspector Bill Paliscak, Special Agent Paul Buta, Special Agent Tim Chard (FLEOA Director of Administration), and Deputy Jason Matthew. These cases spanned a time period of September 11, 2001 to the present.

Subcommittee Chairman Stephen Lynch was responsive to Adler's testimony, and asked what FLEOA recommended to help fix the serious problems. Adler recommended that a critical care nurse be promptly assigned to traumatic law enforcement injury cases. FLEOA members' experiences have been positive in situations where an OWCP critical nurse was quickly involved. To help combat the communication obstacles FLEOA members' have experienced, Adler recommended that OWCP and FEC establish emergency points of contact accessible for each law enforcement agency. This would enable agency officials to contact an OWCP and/or FEC representative to intervene quickly and resolve specific case problems.

According to OWCP Director Shelby Hallmark, who testified in the first panel, OWCP approves roughly 80% of traumatic injuries and 50% of exposure cases and they are "constantly seeking ways to do better." He also stated that "complicated cases" could take up to six months to adjudicate. Adler's rebuttal to that statement was, in effect, that while the OWCP adjudicates, federal law enforcement officers are bleeding and accruing overwhelming debt.

The day after the hearing, Washington Post reporter Joe Davidson wrote an article entitled, "Getting Compensation Shouldn't Be So Hard For Federal Workers Hurt on the Job." After writing that "Uncle Sam should not be as stingy as he was made out to be during the hearing Wednesday on Capitol Hill," Davidson proceeded to reference three of the cases that Adler referred to in his testimony: Chard's, Vaiani's and Paliscak's. Davidson pointed out that in each of the three cases, all officers endured both financial and physical duress. In the case of Special Agent Chard, OWCP's rejection of his claim resulted in the FLEOA Foundation stepping up to pay for his much needed treatment.

On July 23, 2010, FLEOA National President Adler, Legislative Vice President Duncan Templeton and USSS Agency President Donald Mihalek held a follow up meeting with the Department of Labor's Office of Workers Compensation Program to discuss any progress made on initiatives suggested at a similar meeting six months prior. FLEOA was fortunate to have USSS member Paul Buta, who was shot during an off-duty incident, and Marshals Service member Jason Marshal, who was stabbed during a violent encounter by an HIV positive inmate, present at the meeting. In each of their cases, OWCP either denied care or failed to pay for follow up care for injuries sustained on the job. OWCP Director Shelly Hallmark, FEC Director Douglas Fitzgerald and their staff participated in the meeting and were able to hear first-hand how OWCP failed Paul and Jason. The DOL staff, including both Directors, was apologetic about the mishandling of critical LEO cases and indicated a commitment to work to fix the system. One of the areas OWCP did point out would be very helpful in processing OWCP claims is for the Agencies and individuals to fully fill out the correct paperwork and get it submitted in a timely fashion. OWCP indicated that they did offer waivers for timeliness, have training available online for individuals in Agencies dealing with OWCP claims and that a "paper trail" was critical to proper adjudication of claims. FLEOA reiterated its suggestion to have Regional OWCP liaisons specifically for LEO's and their Agencies to help facilitate claims and answer questions. FLEOA also reiterated its recommendation to have OWCP accelerate the involvement of Critical Care Nurses for law enforcement cases involving traumatic injuries. Both Directors indicated they were good ideas and would work on setting up protocols for implementing each.

On a separate but related issue, OWCP advised that by federal law, they are prohibited from paying for preventive medications or procedures stemming from exposure. OWCP did indicate that in those cases, Agencies do have the authority to pay for the medications, but are not compelled to. This issue was highlighted when Deputy Jason Marshal told the DOL staff how he was violently assaulted and stabbed by an HIV positive inmate, who had secreted a knife on her person. He was later told that the inmate was HIV positive and Jason would need to take medications that helped prevent an HIV infection. When Jason filed a claim to cover the cost of receiving such treatment, OWCP denied it based on their position that the law precludes them from accepting exposure cases. Apparently, if Jason was to be diagnosed with HIV, then OWCP would pay for the medication and treatment. It is important to note that the Marshals Service immediately stepped up and covered the costs that the FEC declined to pay.

At the July 21st hearing, Chairman Stephen Lynch asked FLEOA if there was any legislative fix that could help with the ongoing OWCP problems. FLEOA will follow up with Chairman Lynch to address this critical area in need of a Congressional fix. FLEOA would like to recognize Chairman Lynch for his considerable support on this issue, as well as with other FLEOA issues such as the USPS Postal Inspector Pay Equity legislation (H.R. 5368).