A fight over frontier justice

By DAVID SEDEÑO / The Dallas Morning News

SUNLAND PARK, N.M. – A made-for-Hollywood plot is playing itself out in this border town, complete with train robbers, beaten FBI agents and the forcible
removal of Mexican suspects from their homeland to waiting U.S. agents.

"Operation Vise Grip" was to have been a carefully executed sting operation by the FBI to nab thieves who continually break into merchandise-filled Union Pacific
trains that run within 20 feet of the border.

The bust quickly went south, literally, with FBI agents going into Mexico through the fence marking the frontier and then crawling back beaten and bruised so badly
that doctors induced comas in two of them to reduce swelling to their brains.

After the melee, suspects in plastic handcuffs wound up on the U.S. side, and FBI investigators ended up in Mexico looking for evidence.

The case, observers said, has created a diplomatic dilemma for both countries, whose officials seek answers while treading gingerly amid binational sovereignty concerns.

"This was an operation that was flawed from the start, and unfortunately, two agents got hurt," said Howard Anderson, an Albuquerque attorney representing one of 15 Mexican citizens awaiting trial in U.S. District Court in Las Cruces.

"These FBI agents tried to capture train robbers, but they violated policies and procedures and exceeded their reach," he said. "Now they are trying to punish as many people as they can to protect themselves. This is going to be a big fight."

The Mexican government has filed a formal protest with the U.S. State Department, demanding to know what happened Sept. 12 in  the Ciudad Juárez suburb of Colonia Anapra, across the fence from a similarly named neighborhood in Sunland Park.

The Chihuahua state attorney general's office also is looking into the matter to determine whether state or municipal police violated laws and how several Mexican citizens ended up in a U.S. jail without being taken before a Mexican judge for an extradition hearing.

FBI and Border Patrol agents have filed affidavits and reports on the incident, but Assistant U.S. Attorney Norm Cairns of Albuquerque declined to discuss specifics in the case.

On Tuesday, federal prosecutors will seek U.S. District Judge William Johnson's permission to take blood and hair samples from the 15 suspects to compare with evidence gathered at the scene.

Mr. Anderson, however, has argued that the evidence may have been obtained illegally. He and other defense attorneys have urged that the charges against their
clients – conspiracy to steal and hide interstate commerce, assault of federal agents and illegal entry into the United States – be thrown out because their arrests were
illegal.

Camarena comparison

Legal scholars warn that this case could end up like the one of a kidnapped Mexican doctor accused in the torture slaying of Enrique "Kiki" Camarena, a special
agent with the Drug Enforcement Administration. Agent Camarena was abducted from a Guadalajara street in February 1985; his tortured body was found a month
later.

Dr. Humberto Álvarez Machain, a Guadalajara gynecologist accused of involvement in Agent Camarena's torture, was himself kidnapped by bounty hunters in 1990.
He was taken to the border, where waiting U.S. law enforcement officials took him to Los Angeles to stand trial on murder charges.

The U.S. Supreme Court ruled that no U.S. laws were violated during Dr. Álvarez Machain's arrest. A federal judge presiding over his murder trial ruled later,
however, that there was not enough evidence to link the doctor to Agent Camarena's death and dismissed the case, ordering the doctor's release.

The controversy over the physician's abduction prompted a revision of an extradition treaty between the United States and Mexico that now forbids the cross-border kidnapping of criminal suspects wanted in the other country.

"Law enforcement agencies on both sides of the border have developed more informal cooperation that can be more efficient than the formal cooperation at the federal level. But you just have to be sure that individuals' rights are being protected," said Ana María Salazar, a lawyer and former Pentagon official now
consulting in Mexico City.

The Colonia Anapra area in Mexico contains thousands of makeshift squatters' homes that first appeared in the early 1980s. U.S. authorities have said it is home to a cell of the Siete Dos (72) street gang responsible for smuggling drugs and immigrants into the United States and accused of involvement in assaults, killings and the train robberies.

The Border Patrol on the U.S. side closely watches Colonia Anapra every night. If drug smugglers or undocumented immigrants can get past ground motion sensors, a pair of railroad tracks and thick brush, they can blend into the Sunland Park neighborhoods and continue their northward journey.

The merchandise in the trains is a prime target for thieves, who can stop the trains by cutting a brake line on a railcar, break into it and return to Mexico, where
Colonia Anapra's labyrinth of plywood and sheet-metal huts beckons. Since January, trains have been hit more than 80 times.

From affidavits and reports filed in the case, agents described Operation Vise Grip on Sept. 12.

U.S. authorities, acting on a tip that a Union Pacific train would be hit that night, developed a binational, interagency interdiction plan. It would put teams of FBI
agents in the railcars. Customs and Border Patrol agents and railroad police on the U.S. side would support those officers. Mexican customs and Juárez municipal
police were to converge on Colonia Anapra simultaneously from the south side.

Several three-person FBI agent teams boarded the train several miles west. A little after 8 p.m., the train stopped, and seven people crossed into the United States
through a hole in the fence, according to an affidavit filed by FBI Special Agent Josephine Figueroa. The 12-foot-high fence is completely in U.S. territory, and the
actual international demarcation is about 5 feet to the south.

FBI Special Agents Sergio Barrio and Samantha Mikeska chased two suspects near the railcars and grabbed them on the north side of the fence. Agent Mikeska
was holding a suspect, but he pulled her through the fence opening. She handcuffed him and they slid down a litter-filled arroyo on the Mexican side of the fence.

A group of people that had gathered nearby began throwing rocks, bricks and sticks at her as she tried to take the suspect back through the fence opening. She was
struck in the back of the head with a brick.

Her partner, seeing what had happened, climbed through the fence to assist her. He was hit by a rock and by a club in the back of the head. Another man kicked
and hit Agent Mikeska with a baseball bat on her leg until she let go of the suspect.

Both agents then climbed back through the fence. They were taken to an El Paso hospital, where they were treated for brain injuries.

Mexican authorities, according to defense attorneys, later converged on the area and began going into homes and rounding up people.

Those suspects were taken to a crossing point where U.S. law enforcement agents arrested them.

Professor weighs in

Jorge Vargas, a professor of law at the University of San Diego licensed to practice in Mexico and the United States, said there were problems with the law
enforcement actions on both sides of the border.

If Agents Mikeska and Barrio pursued suspects into Mexico, they violated international treaties that forbid agents from one country from entering another country on
a "hot pursuit," he said.

If people were pulled out of their homes by Mexican police without proper search warrants and were arrested and extradited to the United States without first
appearing before a judge, that amounts to kidnapping, he said.

"This arrogance is certainly a reason why many people hate the United States. It's a total disrespect for international law and the sovereignty of Mexico," Dr. Vargas
said. "This cannot be condoned, and if we want the relationship between these two countries to be harmonious and cordial, Mexico deserves an apology from the
United States."

FBI spokesman Al Cruz in El Paso said that Agents Mikeska and Barrio are recovering from their injuries but that it would be a while before they return to active
duty.

Mr. Cruz said FBI agents never crossed into Mexico to arrest anyone on Sept. 12, but he acknowledged that some of the suspects charged in the case were
arrested by Mexican police and turned over at the fence.

He said that FBI agents crossed into Mexico the next day, Sept. 13, through the fence after getting permission from Mexican authorities and only to gather evidence.

"Frankly," he said, "we don't know if we were able to get any evidence."