"The Racist Manifesto"

U.S. Customs Officers Are Often Divided by Ethnicity

By Bill Conroy
Chapter 4 of a book published by Narco News

February 29, 2004

Supporting Documents: Office of Inspector General investigative report on shredded Disciplinary Review Board documents (410 kb PDF) E-mail from anonymous federal agent to Customs Commissioner Kelly (267 kb PDF) “Mexican Mafia” letter (1.4 mb PDF) Summary of Internal Affairs findings in Mafia Letter Case (136 kb PDF) Note: Acrobat Reader needed to view PDF documents

Whistleblowers are not the only victims of Customs’ good-ol’-boy management style. One Hispanic U.S. Customs inspector stationed along the nation’s southwest border describes the work environment at the federal agency as being similar to the plot of Animal Farm – a 1945 satire of Stalinism penned by George Orwell.

Paraphrasing a passage from the book, the inspector says that when it comes to opportunity within Customs, “Everyone is equal. It’s just that some are more equal than others.”

The bite of that comment underscores the frustration felt by many Hispanic Customs investigative agents and uniformed inspectors, according to a number of agency employees interviewed. In many cases, the employees asked that their names not be used in print because they feared Customs management would retaliate against them.

Along with the charges of inequities in the workplace, sources within Customs also have stepped forward to blow the whistle on what they claim are startling examples of abuse of power within the federal agency.

The sources allege that Customs management has condoned a policy of shredding records used in disciplinary actions in order to keep those documents away from union officials.

The records are called “briefing papers,” according to a legal deposition taken in the fall of 2000 as part of an employee disciplinary hearing involving Hispanic Customs Agent Miguel Contreras.

The briefing paper provides members of Customs’ Disciplinary Review Board (DRB) with, among other facts, a synopsis of the case against an employee, proposed charges, the range of potential penalties as well as the disciplinary history of that employee.

“Once we get through the DRB process, the briefing (papers), we put those in a shredding bin. ... We have been told that after the (disciplinary review) board has made its presentation, you collect them back (the briefing papers) and then put them in the bin,” states a Customs employee-relations specialist in the legal deposition. “I have been told they (Customs management) didn’t want the union to get their hands on them (the briefing papers).”

The disclosure of the document-shedding practice prompted some strong reactions at the time from individuals who deal with Customs regularly. The allegation even led to a government investigation in the spring of 2001, according to an official with the League of United Latin American Citizens (LULAC).

Thomas Allison, a former Customs agent and an attorney who has represented Hispanic Customs agents in discrimination litigation, says the alleged policy of shredding briefing papers, “even if it is limited to just that set of documents, can have serious implications on promotion and disciplinary matters.

“It’s a problem if they are destroying those documents, because they are destroying proof,” Allison adds.

Jim Watkins, media spokesman for the National Treasury Employees Union (NTEU), which represents uniformed Customs employees such as inspectors, says the union is “very concerned about the shredding of documents.”

“When we go into a case involving allegations of disparate treatment, these documents (the briefing papers) are relevant information and should be made available,” he adds. “It’s hard to believe they are shredding them.”

Colleen M. Kelley, national president of NTEU, adds that “if there is a spin being put into these briefing papers to prejudice a case, then it surely would be a major concern.

“If we were involved in a case where we knew this was going on (documents being shredded), we would do everything we could do legally to stop it,” Kelley adds. “... Clearly, nothing should be shredded that is used in a case.”

Dennis Murphy, a spokesman for Customs in Washington, D.C., responded to the shredding allegations by saying, “We don’t operate that way. They (Customs employees) are getting their due process. That’s how we operate.”

Officials with the civil-rights group LULAC, which conducted its own investigation of the document-shredding and the Laredo drug-seizure falsification allegations, have a different take on the situation.

“LULAC is extremely concerned about all of the allegations made with respect to document shredding and false reports,” says LULAC spokeswoman Julie Marquez. “We are concerned with the shredding of documents in order to keep them away from the union, because this represents a blatant attempt to obstruct the lawful performance of union activities.”

Marquez adds that she was questioned in late April 2001 by an investigator from the U.S. Treasury Department’s Office of the Inspector General (OIG). She says the meeting with the OIG investigator concerned allegations that Customs officials are shredding records used in disciplinary actions in order to keep those documents away from union officials.

“There is an official investigation underway, and we (LULAC) have been contacted and interviewed by an investigator from OIG,” Marquez asserts. “The investigation is related to the matter of document shredding, which we are concerned about because of the impact that type of activity has on the ability to compile data to show disparity of treatment as well as patterns of racial profiling within Customs.”

The OIG issued a report on its findings in the document-shredding investigation in December 2001. The report concluded that U.S. Customs Labor Employee Relations (LER) personnel, prior to 2000, were not retaining the “briefing papers” in case files.

“... LER staff recognized that not including the briefing paper as part of the employees’ case file was problematic,” the OIG report states. “In the fall of 2000, LER management made the decision to include the briefing paper in the employees’ case file.”

Since that time (through the date of the OIG report) LER personnel were able to “recover 284 briefing papers associated with the 339 cases brought before the DRB,” according to the OIG report. A total of 55 briefing papers were not recovered.

The OIG report did not address the reason why the briefing papers were being shredded, nor did it explore the issue of whether such activity compromised the integrity of any cases brought before the DRB.

The document-shredding practice is only the tip of the iceberg, though, in the ongoing battle between Hispanic Customs agents and the federal law-enforcement agency.

The letter

In the late 1990s, an anonymous letter was sent to Customs headquarters by a Customs agent in El Paso, Texas. The letter was addressed to Raymond Kelly and sent to headquarters in the spring of 1998, about three months before Kelly was sworn in as Commissioner of Customs. On September 29, 1998—nearly two months after Kelly took over the helm at the agency—an Internal Affairs unit from Customs headquarters was dispatched to the El Paso office to investigate the allegations made in the letter.

Copies of the anonymous letter and the subsequent Customs investigative report were obtained from LULAC. In addition, related legal documents were obtained in which the anonymous letter writer is identified as Special Agent Sean Mulkearns.

In the correspondence, Mulkearns makes a series of unsubstantiated charges concerning a group of Hispanic Customs agents working in the El Paso Customs Office of Internal Affairs. Mulkearns is Caucasian, and the individuals referred to in the missive as “Mexican Mafia” are Hispanic Customs agents.

Among the accusations made in the letter are the following:

“There are a number of agents/supervisors which have banded together into what the … office calls the ‘Mexican Mafia.’ These agents have gravitated to the Office of Internal Affairs. They have and are pursuing what can only be called ‘vendettas’ against a number of agents. ... Many of these vendettas started years ago but these Mafia agents never forget.”

Later in the letter:

“All of these ringleaders/agents (the Mexican Mafia) have started their careers, either as patrol officers, inspectors, or El Paso police, in the El Paso office’s jurisdiction. They have significant ties and dealings with smugglers. Some rumors state that some smugglers are in their close family relations, but that information is closely guarded. They have positioned themselves to know when one of their ‘OWN’ relatives or close friends is being investigated and to snuff out any competition. ... They (the Mexican Mafia) have gravitated to and infiltrated the Office of Internal Affairs (in Customs’ El Paso office) in a slow and progressive manner.”

Later in the letter:

“I believe if these rogue agents (the Mexican Mafia) are allowed to solidify into a ‘Hit Team’ in IA (Internal Affairs), it will eventually lead to physical violence and possibly someone being shot.”

Mulkearns at one point refers to the Hispanic agents as a “band of low lifes” and says they should be forced to submit to polygraph tests. “If they refuse to submit, then they should be transferred—with no hope of returning to the El Paso area,” Mulkearns’ letter states.

“I have always believed that nothing sanitizes better than shining the light of day onto it,” the letter concludes.

It is signed (spelling as it appears in the letter): “Sempre Fi, a Good/Honest Customs Agent.”

In response to the letter, and under the watch of Commissioner Kelly, an Internal Affairs unit was flown to El Paso to investigate the charges in Mulkearn’s letter.

The findings of the investigative unit, called a “Flying Squad,” according to the their report, were as follows:

• The agent who wrote the letter admitted under oath that he “wrote the letter because he/she did not get selected for an agent position” in Internal Affairs (IA) at the El Paso office. “During (Mulkearns’) debriefing on Oct. 8, (he) stated that (he) was ‘pissed off’ at the time (he) wrote the letter primarily because (he) applied for a position with IA El Paso and was not selected.”
  
  
• Mulkearns admitted under oath that he “embellished some of the information/allegations contained in the anonymous letter.”
  
  
• Mulkearns admitted under oath that he “included false information in the anonymous letter.”
  
  
• Mulkearns admitted under oath that “the anonymous letter contained information/allegations that were hearsay, speculation and the perception of certain individuals who do not like some of the (Hispanic agents).”

“The Headquarters Internal Affairs/Flying Squad (investigation) did not reveal any evidence of misconduct by Office of Internal Affairs/El Paso personnel as described in the anonymous letter … (and) could not corroborate any of the allegations delineated in the anonymous letter,” the investigative report states.

Despite this fact, and an admission in the investigative team’s report that it was “identified early in the investigation” that “many of the allegations were identified as rumor, speculation or unfounded,” the investigation proceeded “in an effort to determine if there was a perception that Internal Affairs/El Paso agents were targeting Office of Investigations/El Paso personnel.”

“Although the (Hispanic agents) voiced their disgust with the allegations and their resentment for the label ‘MEXICAN MAFIA,’ the agents conducted themselves in a courteous and professional manner throughout the … investigation,” the investigative report states.

In addition, even though he admitted under oath that he “embellished” and included “false” information in the correspondence sent to Kelly, Mulkearns was given an opportunity by the investigative unit to rewrite the letter.

Even after the rewrite, the allegations were determined to be unfounded, according to the investigative report, which concluded by stating that “no further investigation by the Headquarters Internal Affairs Flying Squad is anticipated.”

LULAC spokeswoman Julie Marquez claims Mulkearns “received a plum duty station assignment” in the wake of the investigation. In addition, Marquez says Hispanic agents who were the targets of Mulkearns’ letter were dispersed to different posts within the Customs Service—as was requested in the letter.

Other sources within Customs also verified this information.

“We have never seen a more hateful, racist document come from a department of the government,” Marquez says. “... I think this letter, this racist manifesto, and how it was handled is really reflective of the mindset of the management of Customs and how it has used its Hispanic agents.”

Customs officials in Washington, D.C., did not provide comment on the letter incident. However, the Customs’ Flying Squad investigative report states: Internal Affairs’ “current policy requires that all allegations, including anonymous information, be investigated and that (Internal Affairs) employees are not immune to this process.”

An e-mail was sent to Commissioner Kelly by a Hispanic agent from Customs’ San Diego field office just weeks prior to the Internal Affairs Flying Squad descending upon El Paso to investigate the letter-writing incident. The e-mail draws out in vivid terms the concerns of Hispanic agents within the agency.

Excerpts from the e-mail, dated Sept. 10, 1998, follow:

Historically, the (U.S. Customs) Office of Investigations has been controlled by a certain group which is perpetuated by cronyism, favoritism, nepotism and the exclusion of minorities. The result of this corrupt system of promotions and selections often enough is the appointment of an individual, not based on experience, training and competence, but on favoritism and membership in exclusive circles. This reflects the lack of professionalism, integrity and dedication to the mission of the Office of Investigations (OI), and the fostering of sycophancy and self interest/promotion.

... I am sure that you will be bombarded with counter arguments to my observations made in this message, but I beg you please consider the bottom line. There are four SAC (special agent in charge) positions in the Southwest border, all of which have a huge Mexican American population, and none of which have a Mexican American SAC. The vast majority of undercover work and development of actionable information is done by Mexican American agents. Most Mexican American agents in OI are assigned to the Southwest border offices. Are we not qualified to lead? Or, are we not part of the controlling faction in OI? Are we only good enough to be subordinates and not leaders?

... I am deeply concerned that we are facing a moral bankruptcy of leadership in the Office of Investigations. Persons in power seem truly to believe that their authority and leadership derive strictly from the position they encumber, rather than from the integrity, knowledge, experience and dedication that you find within the heart and mind of the individual, and not in any position description. Leadership must be kept strong by strong people, not weakened by cronyistic appointments and incompetence.

The photographs

Despite the risks inherent in standing up to a powerful federal agency like Customs, individuals within the agency continue to put their careers on the line for what they perceive as matters of justice and self-respect, according to agency observers.

One individual who stepped forward is Samuel Rivas St. John, a Customs inspector based in Washington, D.C.

The photographs above and below are of Charles Winwood at a 1994 staff luncheon at U.S. Customs headquarters in Washington, D.C. Copies of the Tex-Mex Fiesta flyer were posted around Customs’ headquarters building to promote the luncheon. Winwood is the individual wearing the sombrero.

St. John decided to tangle with the top brass at Customs in the mid-1990s when he filed an Equal Employment Opportunity (EEO) discrimination complaint over what he describes as a racist incident. Federal EEO statutes, which are enforced by the Equal Employment Opportunity Commission (EEOC), make it illegal to discriminate against employees or job applicants on the basis of race, color, religion, sex, national origin, disability or age.

St. John’s EEO battle with Customs, which lasted some seven years, had its genesis at a 1994 staff party held at Customs headquarters in Washington, D.C. St. John alleges that Charles Winwood went out of his way to belittle Hispanics by attending the luncheon event dressed in the stereotypical sombrero and serape of a Mexican peon.

At the time, Winwood was a senior Customs executive. He later rose through the ranks of Customs, taking over the agency’s top spot in January 2001 with the retirement of Commissioner Raymond Kelly.

Winwood’s rising-star status within Customs, however, did not dissuade St. John from speaking out against him in what St. John deemed a matter of honor. In a May 1998 letter written to then-Secretary of the Treasury Robert Rubin, St. John states:

“I have enclosed photographs of one of your senior executives, Mr. Charles Winwood, assistant commissioner, Office of Strategic Trade, in which Mr. Winwood demonstrates the agency’s attitude toward Hispanics, in this case Mexican-Americans. Mr. Winwood decided to wear a sombrero and serape in order, in his words, ‘to look like a Mexican’ for a TexMex luncheon sponsored by his office. ... I am of Hispanic descent, and I am very proud of my heritage. When I see such displays of blatant insensitivity, especially from a senior executive, it is impossible to ignore or just pass it off as an isolated incident. I have filed a formal complaint on this matter….”

Even though the photographs were taken a number of years ago, they have retained a long shelf life, according to several Customs insiders familiar with the incident.

“They have had a life of their own…,” concedes Customs spokesman Dennis Murphy.

Those who raise concerns about the photographs do so in the context of the large number of Hispanics employed by Customs. Prior to being merged into the Department of Homeland Security in 2003, some 3,900 of Customs’ roughly 20,000 employees were Hispanic.

“This is a stereotype we’ve been fighting for years to erase from the American psyche—a picture of a Mexican peon taking a nap with a bottle of tequila. It’s equivalent to someone putting on black face,” says LULAC’s Julie Marquez. “It’s having fun at the expense and pain of another cultural group that you don’t understand. It’s insensitive, and he (Winwood) needs to look inward if he fails to see the pain it causes.”

In defense of Winwood’s behavior, Murphy stresses that the incident occurred as part of a “let-your-hair-down” office party for employees at Customs headquarters in Washington, D.C.

“This happened to be a Southwestern theme lunch, and he (Winwood) put on a sombrero and poncho,” Murphy explains. “His intent was to build office camaraderie.”

St. John stresses, though, that Winwood was the only one dressed “in costume” for the luncheon.

“(Winwood’s) costume shows insensitivity to Hispanics,” stresses attorney and former Customs Agent Tom Allison. “It’s like the Frito Bandido commercial. Here’s some guy dressed in a costume that Mexicans find offensive in order to make fun of them. It’s insensitive and it shows up in everything they (the top management of Customs) do.”

Murphy confirms that someone at the 1994 luncheon did complain about Winwood’s behavior. That resulted in an investigation into the incident by the Treasury Office of Inspector General (OIG). “They (OIG) determined that no (disciplinary) action was necessary,” Murphy adds.

Murphy says he cannot explain why no one else was dressed in a costume. He stresses, though, that there were Southwestern-theme decorations and Mariachi performers at the party. In addition, he says Winwood subsequently made a general apology stating that he did not intend to offend anyone.

However, that apology was of very little consolation to St. John—who contends he was subjected to retaliation and was passed over for promotions after filing his discrimination complaint concerning the incident. In a second letter sent to Treasury Secretary Rubin in June 1998, St. John states:

“The bottom line is that this incident did take place and it was a disgraceful and unpardonable offense by a senior Customs executive. ... For (Winwood) to parade around the Customs headquarters building in a serape and sombrero to ‘look like a Mexican’ as Mr. Winwood stated, is absolutely deplorable and cannot be brushed off with just an apology. This is a senior Customs executive we are talking about. ...”

St. John adds that the flyer distributed to Customs employees promoting the 1994 luncheon was equally disturbing in that it includes a demeaning drawing of a Mexican bandit and it makes reference to Poncho and Cisco—also considered belittling characterizations of Mexicans.

As evidence of the uphill struggle St. John endured, he points out that his complaint was fought tooth and nail by Customs and was still pending a hearing before an EEO judge some seven years after it was initially filed. St. John says his EEO case was finally settled in September 2001. The settlement terms are confidential, he adds.

No Fault

St. John’s long, contentious battle with Customs is not unique. E. William Velasco, who served as the acting assistant commissioner of Internal Affairs for the Customs Service before retiring in May 1999, paints a bleak picture of the culture within the agency as well.

Velasco, who is Hispanic, says he attained a high position within Customs, “but I had to fight and scratch all the way there, and I had to file EEO actions repeatedly.

“I endured discrimination there (in Customs) for many years; it goes back 15 to 20 years,” adds Velasco, who retired from Customs in 1999. “I made the best qualified list (for jobs) numerous times, and I was never promoted. Finally, I had enough of it and I decided to file through EEO.”

Velasco adds that he “was privy to a lot of high-level meetings” in his executive role with Customs.

“Frankly,” he says, “the mentality was that there was no way they (Customs) were going to give in to anyone. They were not concerned with right or wrong. They were concerned about giving in. The issue was whether they (Customs) would be found at fault.”

Customs Agent Romeo Salinas learned that reality first-hand. A jury in a federal court case in Laredo awarded Salinas $1 million in actual damages in June 2000. The jury found that Customs failed to promote Salinas in retaliation for that agent’s prior EEO filings. Despite the hefty jury verdict, under the law, the statutory maximum Salinas was entitled to recover was $300,000 in damages.

During the trial, Salinas’ attorney, Ronald Tonkin of Houston, called as a witness a former assistant commissioner of Customs, who provided testimony detailing the retaliatory culture within the U.S. Customs Service. In addition, 10 other former and current Customs employees testified that they, too, had suffered retaliation from Customs officials.

According to Tonkin, immediately after the jury award, the government filed a motion seeking to reduce the judgment in the Salinas case to nominal damages. Tonkin says the government’s attorney proposed to him that Salinas should receive only $10,000 in damages. In addition, Tonkin says “a couple of days after the jury made its decision, my client (Salinas) was suspended (from his Customs job) for two days.

“Even when it’s a clear-cut case, Customs will continue to fight it by filing more appeals,” says Tonkin, who is a former federal prosecutor. “In my client’s case, it has already cost $180,000 in expenses (as of June 2000) and attorney’s fees, and Customs is still fighting it. They (Customs) try to bury you in paperwork and spend an inordinate amount of time and money fighting these things.”

In January 2001, the judge in the Laredo case ruled in favor of Salinas, granting him the maximum amount of compensatory damages, $300,000, as well as ordering the government to cover back pay, medical expenses, attorney’s fees and court costs. Tonkin adds, though, that the U.S. Attorney’s Office appealed the U.S. District Court judge’s ruling.

The federal appeals court ultimately remanded the case back to the district court on the issue of compensatory damages and Salinas agreed to accept the suggestion of the appeals court for a $150,000 settlement. In addition, the final judgment required Customs to provide Salinas with, in round numbers, $38,000 in back pay, plus $9,000 in interest; $16,000 for past medical expenses; $157,000 in attorney’s fees; and $26,000 in court costs — plus another $5,000 in attorney’s fees to conclude the case.

However, as of year-end 2002, Tonkin said Customs had still not provided Salinas with proper notification of a promotion he had earned, nor had the agency made good on the back pay and interest due.

The foot-dragging by the agency prompted Tonkin to fire off the following threat in a letter to the deputy assistant commissioner of Customs:

“In the event that I do not receive in WRITING … verification that the above items have been addressed and that the necessary steps have been taken to comply with the judgment, you will leave me no alternative but to bring on a motion for contempt of the District Court for your failure … to comply with the judgment,” wrote Tonkin in the letter.

Several months later, the government finally fulfilled the terms of its settlement with Salinas.

Throwing rocks

Ricardo Sandoval, the resident agent in charge of the Customs Office of Investigations in El Centro, Calif., in July 2000 won a U.S. Court of Appeals case in which Customs was challenging a 1998 lower court’s finding that he had been the victim of discrimination and retaliation. In that lower-court case, Sandoval raised allegations that a neo-Nazi ring was operating inside the Customs Service in the San Diego area. The case stemmed from an incident in 1992 in which Sandoval’s first-line supervisor in the Office of Internal Affairs in Calexico, Calif., ordered him to investigate a complaint that involved a white supervisor assaulting a black officer.

Legal documents filed in federal court in Washington, D.C., in May 2002 in a related class-action discrimination lawsuit against Customs describe the rock-throwing incident as follows:

Several white Customs managers had thrown rocks at Ken Lakes and it appeared to be racially motivated. One of the perpetrators wore a Nazi Swastika ring. Evidence was developed showing that these Customs managers collected Nazi memorabilia and they had scrawled swastikas on lockers and elevators in Customs buildings.

Sandoval came to believe that a neo-Nazi group was behind the incident. He reported it to his superiors and recommended that it be referred to the United States Attorney’s Office for prosecution as a “hate crime” under the civil rights statutes. His request was denied and he was told that Customs would send out a memo saying inspectors should not throw rocks at black employees.

Sandoval ignored his superiors and reported the results of his investigation to the United States Attorney’s Office, where the case was referred to the Justice Department’s hate crimes unit in Washington, D.C.

Thereafter, Agent Sandoval’s upgrade to GS-14 (rank) was denied and he was not selected for the Internal Affairs/Office of Enforcement rotation. He did not receive temporary acting supervisory assignments. Based on the foregoing, Agent Sandoval filed an EEO complaint alleging discrimination and retaliation.

In 1998, a California federal jury awarded Sandoval $200,000 for discrimination and retaliation. Several jurors said they believed that corruption and discrimination may be systemic within the Customs Internal Affairs unit where Sandoval worked in 1992.

“He (Sandoval) has been under investigation for frivolous things for years,” says Sandoval’s attorney in the California case, David Spivak. “It’s all retaliation.”

Spivak adds that Customs fought the award of attorney’s fees in relation to Sandoval’s 1998 case. In addition, Customs took nearly a year to make good on the damages awarded to Sandoval after the appeals court ruled in his favor in July 2000.

“The EEO process with respect to Customs is a shambles,” Velasco says. “... Once this issue gets outside that building in Washington, the truth will come out.”

Next in Chapter 5:

Hispanic agents charge that Customs good-old-boy system prevents minorities from getting ahead in the agency. A pattern of alleged retaliation against Hispanic agents who have filed a class-action discrimination case against the agency is detailed. One of the participants in that litigation is an agent who was shot in the back and left paralyzed during a botched drug bust.

Read the rest of Bill Conroy’s Borderline Security:

Prologue

Chapter 1 – Investigation Derailed

Chapter 2 – The Belly of the Snake

Chapter 3 – Shooting the Messenger

Chapter 4 – “The Racist Manifesto”

Chapter 5 – The Hydra

Chapter 6 – Green Quest

Chapter 7 – Quid Pro Quo

Chapter 8 – Reckless Driving

Chapter 9 – Firestorm

Chapter 10 – Swept Under the Rug

Chapter 11 – Politically Connected

Chapter 12 – From the DEA to “Homeland Security”

Chapter 13 – Airline Passengers At Risk from DEA Drug Sting Shipments

Chapter 14 – The Dysfunctional Anti-Drug Agencies

Epilogue – At the Threshold of Conscience

Bill Conroy has worked as a reporter or editor for the past eighteen years at newspapers in Wisconsin, Arizona, Minnesota and Texas. His investigative reporting over the past five years has focused on corruption and discrimination within federal law enforcement agencies.

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