Gaudencio Felipe Garcia grabbed Border Patrol Agent Scott Kozma by his ATV helmet, pulled him to the ground and twisted the helmet from side to side, Kozma testified Wednesday in U.S. District Court in Tucson.
“Mr. Felipe Garcia was trying to kill me,” Kozma told Judge James A. Soto. “He grabbed the back and front of my helmet in an attempt to break my neck.”
The fight occurred the afternoon of Feb. 11 near Vamori on the Tohono O’odham Reservation while Felipe and another man were crossing the border illegally, according to court records.
Instead of breaking Kozma’s neck, the helmet twisted around his head and blocked his vision, Kozma said. Felipe then “stomped down on top of my head” before Kozma recovered and handcuffed him.
Defense lawyer Michael Simon contested that version of events. Felipe resisted arrest, but it was unclear how the fight unfolded, Simon said, noting his client suffered injuries to his chest, abdomen and nose.
Kozma was treated for acute neck and lumbar strain and abrasions. Felipe pleaded guilty to assaulting a federal officer and Soto sentenced him Wednesday to 15 months in prison, which fell in the middle of the sentencing range agreed to in the plea agreement.
The fight near Vamori came as the 671 reported assaults on Border Patrol agents nationwide in the first 11 months of fiscal 2017 were 67 percent higher than during the same period the previous fiscal year, according to U.S. Customs and Border Protection statistics released in September.
Customs officers at ports of entry reported 39 assaults from the start of October 2016 to the end of August 2017, down from 56.
Attorney General Jeff Sessions took aim at assaults on federal officers when he directed prosecutors to make them a “top priority” during an April 11 speech in Nogales.
“If someone dares to assault one of our folks in the line of duty, they will do federal time for it,” Sessions said.
And prosecutions of those assaults in Arizona are rising, according to Justice Department records compiled by the Transactional Records Access Clearinghouse from Syracuse University.
The 48 new prosecutions of assaults on federal officers in Arizona during the first 11 months of fiscal 2017 was up from 34 in each of the two previous fiscal years.
A review by the Arizona Daily Star of 35 federal court cases of assaults on Border Patrol agents and customs officers in Arizona since the start of 2016 — as well as several cases in which apparent assaults occurred, but no assault charges were filed — sheds light on how the assaults and prosecutions unfold.
In a Jan. 24 incident, prosecutors said Leonel Castillo Lepe, a 22-year-old Mexican citizen, allegedly tried to stab an agent near Three Points.
Agents were arresting three suspected border crossers when Castillo tried to flee. An agent caught up with Castillo, who punched the agent in the face. Castillo then tried to stab the agent with a steak knife, but the agent’s equipment stopped the knife from breaking skin, according to the criminal complaint.
A federal grand jury indicted Castillo on charges of attempted murder of a federal officer and assault on a federal officer which inflicts bodily injury, court records show. His trial is scheduled to start in February.
Border Patrol agents in the Tucson Sector reported 123 assaults in fiscal year 2016, second only to 151 assaults in the Rio Grande Valley Sector.
The Tucson Sector’s public affairs office said its total included rocks hurled over the border fence. No “rockings” resulted in prosecutions in the court cases reviewed by the Star.
Statistics on assaults in the Tucson Sector for fiscal 2017, which ended Sept. 30, were not available, nor was a breakdown of the types of assaults.
Federal court records show agents and customs officers being bitten in the leg, punched in the face, struck by cars on highways, dragged by a car at a port of entry, as well as facing gunfire at checkpoints and attempted stabbings in the desert.
The majority of the 35 cases reviewed by the Star involved border crossers from Mexico and Central American countries, but 11 cases involved U.S. citizens.
In a May 17 incident, Gary Smith, a 76-year-old Tombstone resident, opened fire on two agents at the Border Patrol checkpoint on Arizona 80 with a 9 mm handgun. The agents returned fire, striking Smith in the arm.
He was charged the next day with assaulting a federal officer. His trial is set for Dec. 5.
In a Feb. 23 incident near Bisbee, two men were seen by agents loading bundles of marijuana into an SUV. An agent stopped the SUV and tried to remove the passenger, who resisted.
Katherine Sparks, a 23-year-old U.S. citizen who was driving the SUV, accelerated and struck the agent’s leg, causing tendon and ligament injuries, according to the criminal complaint. Her trial is set for Nov. 7.
Prison for some
On the night of March 1, Border Patrol agents working in the Cimarron Mountains south of Casa Grande on the Tohono O’odham Reservation approached a rocky outcropping where they saw drug-trafficking scouts using binoculars and speaking into a radio.
Agents saw Jose Flores Villareal, a 29-year-old Mexican citizen, hiding items in the rocks as a Border Patrol helicopter approached. When an agent tried to arrest Flores, he pushed the agent and swung his elbows back at the agent. During the struggle, Flores started to push the agent towards a 15-foot cliff, according to the complaint filed by the agent.
Flores was sentenced in September to 13 months in prison for assaulting an officer and 37 months for smuggling marijuana.
Prison sentences in the cases found by the Star ranged from time served for a Guatemalan man who bit a Border Patrol agent in the arm near Newfields on the Tohono O’odham Reservation to 46 months in prison for a Mexican man who threw a rock at an agent during a drug-smuggling attempt near Nogales.
The lightest punishment in the cases found by the Star was one year of probation for a Somalian man who drove into a Border Patrol vehicle near Green Valley while trying to escape arrest.
Dismissals for others
In five cases found by the Star, assault charges were dismissed at the request of the government or as part of plea agreements, court records show.
Jose Fuentes Escobar, a 27-year-old citizen of El Salvador, was sentenced to 15 months in prison in December 2016 for crossing the border illegally. But the assault charge included in the complaint filed by a Border Patrol agent, which stemmed from Fuentes allegedly punching an agent in the face, was dismissed as part of the plea agreement.
A 26-year-old Mexican man was accused of punching a customs officer in the mouth at a Nogales port of entry in January, but prosecutors requested the court dismiss the charge.
A 41-year-old Honduran man was charged with punching a Border Patrol agent in the face near Douglas. When the man grabbed the agent’s club, the agent shot him in the leg, according to the complaint. Prosecutors asked the court to dismiss the charge of assaulting the agent.
No reason was given in court records for the requests for dismissals. A spokesman with the U.S. Attorney’s Office declined to explain the requests and prosecutors involved in the dismissals did not respond to inquiries from the Star.
Dismissing assault charges is a “slap in the face for agents,” said Art Del Cueto, president of the local chapter of the National Border Patrol Council.
For Del Cueto, it appears that “if it’s not a slam-dunk case, they don’t want anything to do with it.”
In other cases, prosecutors decline to file assault charges to begin with, court records show.
Jose Guzman Perez, 21, was sentenced last week for acting as a scout for smugglers in the mountains near Three Points. During his arrest, he and a Border Patrol agent struggled and fell down a cliff, dislocating the agent’s shoulder.
Guzman was sentenced to eight years in prison for smuggling marijuana and for carrying a firearm during a drug crime. But he was not charged with assaulting an agent, court records show.
Del Cueto said he recently attended a muster at a local Border Patrol station where an agent was assaulted a few days earlier. A supervisor told the agents criminal charges weren’t likely, which elicited “groans” from the agents.
Two sides to the story
As was the case with Felipe’s assault of Agent Kozma, court records show defense lawyers regularly dispute how the assaults unfold.
Daniel Hernandez Gutierrez, a 36-year-old Mexican citizen, was arrested in March near Nogales after an agent saw him enter a car near the border. The agent followed the car and Hernandez got out and ran.
The agent grabbed Hernandez while Hernandez tried to crawl under a barbed-wire fence, according to the complaint. The agent’s arm became entangled in the fence and Hernandez started punching the agent in the arm and shoulder. Hernandez ran away and was caught hiding under an air-conditioner pad.
Hernandez’s public defender submitted a letter from a forensic pathologist who said he did not believe the injuries suffered by the agent were “consistent” with the agent’s written statement indicating he had been struck for 30 seconds by closed fists.
“They are consistent with a scuffle, but not to the severity described,” the pathologist wrote.
Hernandez was sentenced Sept. 18 to six months in prison on a charge of assaulting a federal officer, court records show.
In another case, Andrea Tadeo, a 50-year-old U.S. citizen, was charged with assaulting an agent in December 2016 by grabbing him by the shoulders and dragging him at the checkpoint in Three Points. Her brother, Pastor Abran Tadeo, a 47-year-old U.S. citizen, was charged with assault for striking an agent with the side mirror of the family’s RV as he accelerated.
Tadeo’s public defender said the Tadeos, who were traveling with five members of their family, were returning to Tucson after spending Christmas in Rocky Point and had already been inspected twice by the time they reached the Three Points checkpoint.
Citing a cellphone video taken by the Tadeos’ niece that showed the agent’s account was “exaggerated and wrong,” the public defender filed a motion Oct. 16 to dismiss the charges due to lack of probable cause.
Their trial is scheduled to start Nov. 14.