- Chapter 1 Violence on both sides of the border
- Chapter 2 Morning when everything changed
- Chapter 3 The investigation
- Chapter 4 Rethinking what happened
- Chapter 5 Broken families
EAGLE PASS, Texas – Juan Mendez Jr. thought his life was looking up. At 18, he already had a young son. Another child was on the way.
“Mom, my baby tomorrow is getting her crib,” he boasted to his mother.
His girlfriend, Cristina Pina Rodriguez, overheard what he’d said and laughed. “Oh, Juan. Yeah, right.” She didn’t believe him. He didn’t have any money. He hadn’t had a job in months.
That moment wasn’t long after the high school dropout had walked free from jail here in remote Maverick County, along the U.S.-Mexico border and one of the state’s poorest counties. He’d been locked up for three and a half months, arrested on an outstanding warrant and facing burglary charges. A local district judge had sentenced him to eight years’ probation, a light sentence because it was his first conviction as an adult.
While in jail, Mendez promised in letters to his girlfriend that he would change the hard-partying ways that landed him behind bars. But first, he had to get money for the crib.
Around 7 a.m. Oct. 5, 2010, Mendez woke up his 15-year-old U.S.-born second cousin, Jesse Cazares, who had slept at the Mendez family home. Cazares was supposed to be living with the Mendez family as he was enrolled in high school in Eagle Pass. But he actually spent much of his time across the Rio Grande in the turbulent Mexican border town of Piedras Negras.
On a cool and overcast Tuesday morning nearly four years ago, Mendez dressed in a hooded sweatshirt, jeans and white Nike Shox. In the last few months, he’d put on weight, ballooning to 190 pounds on a 5-foot-8½-inch frame. He had straight black hair, brown eyes, a mustache and a goatee.
Mendez said goodbye to his younger brother Gerardo, who knew they were going to help smuggle marijuana. He’d heard his brother and cousin talking about it the day before, but he didn’t tell anyone.
Mendez hugged and kissed his brother. “If I don’t come back,” he said.
Gerardo did not know what his brother meant on that morning. But the comment, and the hug and kiss goodbye, were prescient. Within hours, Mendez would have a violent confrontation with a U.S. Border Patrol agent, leaving one of them dead.
With Mendez driving, he and his cousin got into in a white utility truck – a 1988 Ford F-350 two-door single cab with blue upholstery and bench seats – registered to a trucking company in San Angelo, more than 200 miles away. The truck had crossed into the United States from Mexico the day before at 2:16 p.m.
Mendez and Cazares fueled up at one gas station and grabbed breakfast at another before they made their way to the northern edge of Eagle Pass. There, they had problems with the truck’s battery, or pretended to, perhaps to stall for time. While driving, Mendez talked on the phone a couple of times.
Mendez then steered down into a grassy valley on the Rio Grande. Once there, five men ran out of the brush and tossed 10 tightly wrapped bundles of marijuana – weighing 320 pounds and valued at $256,000 – into the bed of the truck. The men swept away their tracks with some brush and ran back toward Mexico.
Around 8:30 a.m., Border Patrol Agent Hector Nunez was scanning the banks of the Rio Grande when he saw the white utility truck appear on the screen in front of him.
The 13-year veteran was working from a surveillance post inside the Border Patrol’s Eagle Pass North Station near the U.S.-Mexico line, about three miles away. Through remotely controlled cameras, Nunez, then 35, saw the truck turn around close to the river.
Several people were running away from the truck. Another agent broadcast over the radio to agents in the field that the truck had been loaded inside a gated community called Eagle Point Ranch.
Agent Taylor Poitevent, 26, had stopped his green-and-white Border Patrol truck at a nearby gas station when he heard the broadcast. With two years on the job, he still was relatively unseasoned and assigned to line watch duties – scanning the carrizo cane-cloaked riverbank for hours on end.
Like much of the sparsely populated 210-mile waterfront boundary in the Border Patrol’s Del Rio sector, it’s prime smuggling terrain. Tons of drugs are believed to pass through the area, and Poitevent’s job was to try to stop whatever he could.
Although there are hundreds of agents assigned to Eagle Pass, Poitevent was one of about 14 agents in his unit on the 8-to-4 shift that day. He knew that smugglers in the area relied on two-lane Kypuros Road, which leads from the river toward a nearby highway. From there, traffickers often would head to stash houses before handing over their cars to new drivers, who would then disappear onto Interstate 35 toward San Antonio, 140 miles to the northeast, and beyond. He was in position to cut them off.
Poitevent drove near Eagle Point Ranch, an old pecan orchard recently developed into a gated community dubbed the “Beverly Hills of Eagle Pass.” There, he saw the white utility truck. Poitevent stopped to watch the pickup drive out of the development’s main road.
Mendez passed Poitevent and accelerated, speeding down Kypuros Road. Poitevent followed the fleeing pickup and tried to run its Texas license plate as he drove.
Mendez quickly swung right onto a residential street, Wichita Circle, which ends in a cul-de-sac bordered by a long 6-foot-tall wooden fence faded gray.
Mendez stopped the truck at the cul-de-sac. Poitevent saw the driver and passenger doors open. Over the radio, he announced “bailout” as the cousins abandoned the truck and ran south toward the fence. Poitevent parked his truck, jumped out and ran after the driver. The rest of Poitevent’s message was garbled as his radio cut in and out.
Poitevent caught Mendez. The two men, separated by only a few years but worlds apart, struggled and traded punches until Poitevent drew his weapon and fired twice.
A few minutes later, Poitevent called Nunez on his cellphone. Poitevent, who sounded upset, said shots had been fired and he needed backup and an ambulance. Nunez tried to calm him down so he could learn where Poitevent was so agents could respond. But Poitevent wouldn’t respond to Nunez’s questions. He just repeated himself: Shots fired. He needed backup and an ambulance.
Nunez radioed the distress call to other agents. Badly shaken, Poitevent collapsed to his knees and started crying.
“Oh, man,” Poitevent said, according to a neighbor who’d come to his side. “I hope I don’t get convicted for this.”
On the ground a few feet away, Mendez was dying from two gunshots that had ripped through his torso. The bullets had struck him in the back and side as he tried to run away from the agent.
Violence on both sides of the border
Border Patrol’s evolving view of its mission
Border Patrol agents and U.S. Customs and Border Protection officers have killed more than 40 people since 2005, according to government records and statistics kept by civil rights groups. The violence recently has accelerated – more than half of the killings have occurred in the past four years. A half-dozen of those more recent deaths involved teenagers like Juan Mendez.
The deaths have resulted from agents shooting at people throwing rocks from Mexico, confrontations with smugglers and, in one bizarre case, an incident in which an agent shot a Taser dart at a car that burst into flames with the driver inside. Among the dead are foreigners and U.S. citizens, Anglos and Latinos, old men and boys, criminals and one of the Border Patrol’s own. No agent has been convicted of any crime related to a death in any of the 40-plus incidents.
After shooting Mendez in the back, Taylor Poitevent faced no serious repercussions, despite his immediate worry about being convicted of killing an unarmed fleeing man. Nearly four years after the Oct. 5, 2010, shooting, he has not faced criminal charges. He went on administrative leave and eventually transferred to another Border Patrol station in South Texas, where he still works today.
Poitevent did not respond to requests for comment made to his family members.
The Justice Department declined to prosecute the agent. Investigators from the FBI closed their investigation in 2011, followed by the Department of Homeland Security inspector general in early 2012. The local district attorney concluded that he couldn’t prosecute a federal agent, and there was insufficient evidence to charge him anyway.
The decisions to neither prosecute nor investigate further relied heavily on what some officials consider to be a weak investigation by a Texas Ranger, whose credibility previously had been challenged. The local district attorney decided not to prosecute because a Border Patrol agent isn’t a Texas peace officer, which several officials regard as an interpretation of state law that is questionable at best.
For a dozen current and former local and federal law enforcement officials with direct knowledge of the investigation, the fact that an agent shot a fleeing unarmed man and did not face criminal penalties is, like other such shootings, a miscarriage of justice.
“You don’t shoot someone in the back because they beat you up,” said Robert Sifuentes, the Maverick County Sheriff’s Office’s lead investigator into the Mendez shooting.
To critics, Mendez’s shooting death – and the lack of accountability – highlights the Border Patrol’s evolving view of itself as a national security force, not a law enforcement agency.
“Unfortunately, this and other incidents are viewed by the general public as examples of the Border Patrol’s trigger-happy, ‘we can do what we want and get away with it’ attitude,” said Alonzo Peña, a former deputy director of U.S. Immigration and Customs Enforcement. “How these few agents can continue to manage to do this is incredible and damaging to the hundreds of good agents that do their duty every day.”
In many ways, the Mendez case is a fitting window into the rise of violence in the Border Patrol, part of the nation’s largest law enforcement agency. The shooting involves someone whose death would not ignite the same public interest or media scrutiny as one of several lethal cross-border shootings by the Border Patrol into Mexico, or an immigrant killed by police on the streets of New York City. Mendez was an 18-year-old high school dropout, convicted thief and neophyte drug runner living in an isolated Texas border town. He was a U.S. citizen.
By his 18th birthday, Mendez had been arrested 17 times – the first time at 12 – and his case file was three folders thick. The charges ranged from marijuana possession and trespassing to burglary and assault, but almost all of those came as a minor. He had been involved with a gang when he was younger but was not suspected of any gang affiliation by the time he was an adult. His former juvenile probation officer described him as “a regular” who was “riding in the fast lane.” He often did that while high. He did not cut a sympathetic figure.
Yet the casual investigation into Mendez’s death offers a case study into how the standards of justice applied to police shootings in departments across the country have been largely jettisoned when it comes to the Border Patrol. The incident also illustrates how a poorly managed system of oversight has failed time and again to investigate abuses. Much of the reason is years of political infighting among homeland security agencies, despite Congress and Obama administration officials’ knowledge of these long-festering problems.
Outside the policies on using force, the operating philosophy for Customs and Border Protection – the parent agency of the Border Patrol – is protect your own and encourage agents to do what they have to do to get home safe. In the end, the Border Patrol agent was considered the victim, not Mendez.
Critics in Congress and civil rights advocates have called on the homeland security agency to be more accountable and transparent about its use of force amid cries that the Border Patrol has grown violently out of control.
Starting in 2006, the Border Patrol has more than doubled in size, an unprecedented growth spurt that has paralleled the bloody, nearly decade long drug war in Mexico.
Since 2007, there have been more than 6,000 assaults against Border Patrol agents. In that time, four agents died in violent encounters while on duty, including one who accidentally exchanged gunfire with another agent. As illegal immigration has plummeted, the annual number of assaults against agents generally has declined. While there have been fluctuations in aggression – shootings, fighting and vehicle assaults – against agents, according to Border Patrol data, agents have responded with escalating violence and lethal force.
In Texas’ Del Rio sector, for instance, assaults against agents are rare. Yet agents there had the most complaints against them for physical abuse and excessive use of force per 100,000 apprehensions in fiscal 2010 and 2011, according to a May report from the American Immigration Council, a Washington-based immigrant advocacy group.
Steve Telisak, who until recently was the Del Rio chapter president of the National Border Patrol Council, the union that represents agents, said, however, that deadly force is not an epidemic in the Border Patrol.
“Every other large police department has had many more shootings and many more killings than the Border Patrol,” he said. “Every loss of life is obviously a tragedy. I think we do everything we can to minimize that.”
Top homeland security officials, in turn, have pledged to be more open about the agency’s policies and practices. But Customs and Border Protection has fought hard to keep much of the process – from the names of agents involved in shootings to internal reviews and reports – out of the public eye.
Border Patrol agents can’t shoot someone who is fleeing only to prevent his or her escape. An agent may use force, however, if the person fleeing has caused or threatens to cause serious physical injury or death to the agent or to another person.
In an effort to promote transparency – and under considerable public pressure – Customs and Border Protection released in May its revised use-of-force policy guidelines and a long-awaited independent report on the agency’s use of force.
Completed in February 2013 by the Police Executive Research Forum, a Washington-based think tank, the review found that agents had intentionally put themselves in harm’s way before resorting to deadly force or shot at people out of frustration or anger. The consultant recommended that agents not shoot at people who don’t pose an immediate serious threat and not shoot at vehicles unless the occupants pose a threat.
For more than a year, Customs and Border Protection blocked the embarrassing report’s release. In the aftermath of the report becoming public, the agency took action. But not against the Border Patrol.
In June, the agency ousted its longtime head of internal affairs, James F. Tomsheck, who had led the office since 2006. Unnamed officials told the Los Angeles Times that Tomsheck was removed from his post because his office wasn’t aggressive enough in investigating allegations of abuse. Officials also called for a thorough examination and reorganization of the office.
Tomsheck later spoke out against the agency, saying a quarter of the 28 killings since 2010 were “highly suspect.” He alleged that there is a culture of impunity within the Border Patrol, whose officials consistently have tried to change or distort facts to make fatal shootings appear to be legitimate and cover up any wrongdoing. He said his efforts to root out misconduct and investigate excessive force were hindered by senior leaders and other agencies. Tomsheck declined to discuss specific incidents.
In dismissing Tomsheck, homeland security officials kicked the lowest-ranking of watchdogs – the office that often gets the investigative scraps from other, more established agencies like the FBI, the Department of Homeland Security inspector general and even Immigration and Customs Enforcement. Instead of probing the Border Patrol to address its issues, officials turned the runt of the litter into the scapegoat, Tomsheck’s defenders say.
Customs and Border Protection Commissioner R. Gil Kerlikowske in a July interview acknowledged that the agency has not done a good job being open about the use of force. He said he has concerns about the agency’s discipline review process, complicated oversight system and misplaced accountability, but it is still manageable.
“For an agency of 62,000 employees, there is a chain of command. There is oversight,” he said. “Being the commissioner is kind of like being an umpire. There are balls and there are strikes, but they’re nothing until I call them.”
He said a new perspective regarding the nation’s largest law enforcement agency can be helpful. Considering the Border Patrol’s rapid growth and history of fending for itself, he called cultural change important but not instantaneous. It requires more than issuing a new policy, he said, as new and experienced agents alike must be trained.
Within his first five months on the job, he said he’d launched reviews into past deadly incidents, including 67 listed in the think tank’s report; the discipline system; and the curriculum at the Border Patrol’s training academy. He emphasized that agents face more aggression and threatening confrontations than in the past. There is also an enormous amount of scrutiny on how agents treat people, he said.
The U.S. Justice Department, which investigates police misconduct and civil rights violations, rarely prosecutes Border Patrol agents for what families, advocates and lawyers call excessive use of force. Law enforcement officials don’t say much in public about the dead, including Mendez, wary of lawsuits and investigations they say are ongoing and never seem to end. In private, they point to the deceased’s criminal records or smuggling activity, hinting that such deaths come with the territory of border security – acceptable collateral damage.
The full details of the shooting death of Juan Mendez, like almost all of the others killed by the Border Patrol, have never before been fully made public. As is often the case, the Border Patrol has kept quiet and government records mostly remain out of sight. A few of the deaths have been high profile in both Mexico and the United States, but this one faded away.
While Customs and Border Protection has been pilloried for its secrecy about such matters, blocked from public view are deep internal rifts among homeland security officials and a culture and ethos within the Border Patrol that downplay many of the questionable shootings by agents, including Taylor Poitevent.
Among those officials troubled by the Border Patrol’s violence was James Wong, a former No. 2 official in Customs and Border Protection’s internal affairs office who retired in late 2011. He said law enforcement officers have been prohibited from shooting fleeing felons since the mid-1980s, except if the officer believes there is an imminent threat to himself or others.
But since at least 1987, when he joined the federal government, the Border Patrol has acted differently, Wong said. As a high-ranking official based in Washington from 2008 until his retirement, he heard Border Patrol officials say “the Border Patrol is the Marine Corps of law enforcement,” a statement he found alarming.
“The military shoots enemy combatants whether they are advancing or retreating, as they pose a constant threat in a condition of hostile conflict,” he said. The “Border Patrol has had a paramilitary structure and mindset for as long as I have been in federal government.”
This account of what happened the day of Juan Mendez’s shooting, the people involved and the investigation that followed is based on more than 60 interviews with law enforcement officials, attorneys, family members and friends and a review of hundreds of pages of local, state and federal investigative reports, court records and other public information as part of yearlong examination by The Center for Investigative Reporting. CIR also reviewed nearly 11,000 pages of Border Patrol use-of-force reports from 2005 to 2012, first obtained in 2012 in response to a Freedom of Information Act request.
Growing up among drugs, crimes
Months before the shooting, Jesse Cazares had moved in with the Mendez family to attend high school in Eagle Pass. Born in Fort Worth and raised in Piedras Negras, Mexico, with his mother and three siblings, school wasn’t really Cazares’ aim. His father often was locked up, so Cazares grew to be the family provider even though he couldn’t legally drive a car.
“We said, ‘Let’s see if he gets a little better, because he had bad company in Mexico,” said Mendez’s father, Juan Sr., 45, a migrant worker who spends nearly half the year employed at a cannery in California’s Central Valley. “We wanted to bring him over here, to put him in school.”
When he was 12, Cazares allegedly got involved with drug traffickers. Relatives whispered that he was a sicario, or assassin, but can only speculate whether he killed anyone.
Cazares grew up in a Piedras Negras neighborhood known as Mundo Nuevo, a hideout and breeding ground for organized crime. He had hung around a relative of his mother’s, a well-known and feared trafficker named Celso Martinez. Referred to simply as “El Celso,” he was a high-ranking associate of Los Zetas, the notorious Gulf Cartel enforcement arm-turned-organized crime and drug trafficking group that ruthlessly controlled that part of the border.
Cazares’ mother had sent him across the river to Eagle Pass to live with her cousin, Sonia Sanchez, and her family, which included her son Juan Jr., his younger brother Gerardo and two other younger siblings.
It would have been Juan Mendez’s senior year, had he stayed in school. By that time, he wasn’t interested in an education.
Before dropping out, Mendez had a reputation as a hall kid at C.C. Winn High School, named after the prominent Texas oilman. He was someone who spent more time getting in trouble than going to class, said Maverick County Sheriff Tom Schmerber. The sheriff, who took office in 2013, worked at the high school before his successful campaign run but never met Mendez. He is also a retired Border Patrol agent.
Mostly, Mendez hung out in the neighborhood, panhandled at a nearby gas station, smoked marijuana and popped pills, often Rohypnol (better known as “roofies”). He was proud of his 2-year-old son, Juan Alejandro. He was excited for the arrival of his second child, a daughter.
He had talked about going to work in California with his father or going to Minnesota, where an aunt lived. His girlfriend’s uncle also had talked about a job. But that hadn’t kept him out of trouble.
Local police knew him well – as a thief, not a smuggler. He hadn’t smuggled more than once or twice before that October morning, his juvenile probation officer, Javier Gonzalez, said.
Although he had a reputation and rap sheet, Mendez was a good kid with a bad drug problem, Gonzalez said. He wasn’t known to be aggressive or hostile. He was just another teenager who smoked dope and didn’t like school. At 15, he spent four months at a substance abuse treatment program as a condition of probation.
“If he liked something in your backyard, he would go get it,” Gonzalez said. “He would steal anything he could get his hands on to supply himself” with drugs.
To Perla Pardo, a onetime family friend who lived nearby, Mendez was nothing but a troublemaker. At 17, he had burglarized her home, stealing $108 in cash and $165 worth of clothes, which he sold in Piedras Negras to friends of her brothers-in-law for $20.
“He was pretty known here in Eagle Pass because he used to do that – like go into people’s houses and steal stuff,” she said. “It’s a really, really small Eagle Pass.”
Pardo, who works at a local funeral home, told his mother that she wouldn’t file a report as long as Mendez stayed away from her house. But when he came back soon after, she said she had no choice. Mendez admitted to the crime and told police that Pardo’s boyfriend – now her husband – was a friend of his.
A month after his burglary of Pardo’s home, Mendez went on a drug-addled early-morning crime spree. It was New Year’s Eve in 2009, and he burglarized two businesses while hopped up on roofies before he got arrested. He posted bail, got caught with marijuana a few months later and failed to make bond payments.
On May 15, 2010, after Mendez walked back into the United States from Mexico, where he often hung out, Customs and Border Protection officers at the port of entry arrested him on an outstanding warrant, and he returned to the Maverick County jail.
He said the reason he had committed the crimes was because he needed “money to continue to party in Piedras Negras,” according to court records. He was high and fixing to stay that way. But, he later wrote to his girlfriend, something changed for him in jail.
While locked up, he drew pictures and wrote love letters in Spanish and English to his girlfriend. He told her that being locked up was “working” because he didn’t want to be in jail anymore. He pledged his affection and loyalty. He promised to stop his life of drugs and partying if released. Mendez hoped they would “spend many, many years together.”
“If I get out I’ma change and I’ma become a better father and husband once we get married cuz I love you,” he wrote from jail in August 2010, two weeks before his 18th birthday.
As it was his first adult felony conviction, a Texas district judge went easy on Mendez, suspending his prison sentence and instead giving him eight years’ probation as part of a plea agreement. He owed $1,200 in restitution for his crimes.
Another felony conviction likely would have landed him in prison. But not without a chase.
“He was a runner,” said Gonzalez, the probation officer. “If you were going to pull him over to talk, you better get ready for a foot race.”
Troubles along Texas border
Like many border towns, remote Eagle Pass has had its share of outlaws and violent outbursts since its foundation before the Civil War. In its early days, it grew from a military observation post during the Mexican-American War to a haven for smugglers, fugitives and fortune seekers.
In recent years, Maverick County has been at the center of a sweeping FBI probe into local corruption stemming from construction contract bid rigging and kickbacks. One of the three county commissioners caught up in the investigation was also heard on a Drug Enforcement Administration wiretap talking about selling his truck to drug traffickers. Even Juan Mendez’s juvenile probation officer was involved and pleaded guilty.
“Ask any federal law enforcement officer – they refer to us as ‘Illegal Pass,’ ” said Gregory Torres, a local defense attorney who represented a Border Patrol agent in another case involving a civil rights violation. “We live in a very unique world.”
In the last decade, hydraulic fracturing, or fracking, has opened up vast oil and gas exploration in the region and minted overnight millionaires. Known as the Eagle Ford Shale play, the boom has created jobs while lighting up the night sky with bursting flames along the two-lane highways that bounce across the rolling, mesquite-lined landscape. But that hasn’t turned Eagle Pass into a boomtown yet.
Maverick County had a poverty rate above 25 percent in 2012, and it’s even higher – roughly 40 percent – among minors. Nearly 80 percent of the students in the Eagle Pass school district are considered economically disadvantaged.
With limited job opportunities, crime bosses can tap a deep reservoir of unemployed and undereducated youth on both sides of the border.
Since 2009, the Texas border region has accounted for nearly 20 percent of the state’s juvenile felony drug referrals and 18.5 percent of juvenile felony gang referrals, according to the Texas Department of Public Safety. The border region, which extends from El Paso to Brownsville, accounts for 9.7 percent of the state population.
Federal agents and local police along the border in Texas say they noticed a troubling spike in juvenile trafficking around 2007. Around that time, the ruthless Los Zetas had taken over Piedras Negras, a coal-mining town that also claims to be the birthplace of nachos. They had done so first on behalf of their former mob bosses, the Gulf Cartel, and then for themselves after the onetime enforcers broke off and formed their own ultra-violent gang around 2010.
One of the diabolical strategies of Los Zetas and the crime syndicate’s now-arrested leader, Miguel Treviño Morales, was to recruit minors to work as lookouts, drug runners and killers. The penalties for underage smugglers aren’t as severe. In the federal justice system, juveniles rarely face criminal charges, as it’s burdensome for authorities to prosecute them.
“It’s a problem. Cartels are clever, and kids are stupid,” said John E. Murphy, a former acting U.S. attorney for the Western District of Texas, which reaches from San Antonio to El Paso and includes Eagle Pass. “It’s easy to lure them. They’re told: ‘Don’t worry if you’re caught; you’ll go free. If you’re caught, here’s a thousand bucks.’ ”
In the ensuing years, more young people in Eagle Pass got caught up with traffickers. Different students stepped in as cartel contacts at the schools. Stories of beatings, torture and disappeared minors swirled. Even the son of the Maverick County attorney was caught with hundreds of pounds of marijuana.
The year Mendez was shot, 27 minors were referred to the local juvenile probation department for drug-related offenses. Those referrals from a juvenile court judge were for trafficking more than 50 pounds of marijuana.
“If your family has nothing and someone waves $800, $1,200 in front of you and says, ‘Let’s go do this,’ I think it’s difficult for our kids to say no,” said Bruce Ballou, the county’s chief juvenile probation officer.
Morning when everything changed
A chase, a struggle, shots fired
As Taylor Poitevent gave chase, Juan Mendez and Jesse Cazares were out of the truck and running.
The agent shouted for Mendez to lie down on the ground, but the 18-year-old didn’t listen. Instead, both teenagers ran across the narrow swath of grass lawn that stretched between the two houses at the end of the cul-de-sac.
Cazares quickly reached and scaled the wooden fence. But Mendez was not as fast. He was no longer the slim teenager seen in family photos and police mug shots who would try to outpace officers.
Fit and athletic, Poitevent grabbed Mendez at the fence and pulled him down. He carried 15 pounds of gear, including a collapsible baton and a Heckler & Koch .40-caliber P2000 semi-automatic handgun. He was a crack shot. Poitevent knew how to fire a pistol.
As the two converged, so did two different worlds. The son of a pharmaceutical company safety manager and a real estate agent, Poitevent grew up in the sleepy and affluent Texas Hill Country town of Boerne, northwest of San Antonio. He was in the Future Farmers of America club in high school, and in his senior photo, Poitevent is lanky, with close-cropped hair. He was a country boy.
Standing 5-foot-8 and weighing 175 pounds, Poitevent again ordered Mendez to the ground. The teenager spun around and began to shove and hit the agent.
“Stop fighting,” Poitevent commanded in English. “¡Dame los manos!” – Give me your hands! – he said in Spanish as he pulled out his collapsible steel baton and struck Mendez multiple times on the outside of the thigh. The young man repeatedly broke free, but the agent caught him again and again.
Across the street from where the smuggler and the agent were fighting, Adriana Aranda was in her kitchen making breakfast and talking to her brother on her cellphone when she heard the noise.
“Hold on, I think someone is fighting outside,” Aranda said as she stepped into the morning air. She hung up when she saw the Border Patrol truck, thinking the struggle involved a border crosser.
Aranda hung up the phone and walked to the front edge of her driveway. From there, she saw Mendez trying to climb the fence that ran past a neighbor’s house.
She watched Poitevent pull down Mendez by the hood of his sweatshirt. The two men fell out of sight because the white pickup, parked in the middle of the street, blocked her view.
Poitevent struggled with Mendez, grabbing his shirt. Mendez slipped free from his hoodie and shirt and, bare-chested, made it to the fence. The agent ran after Mendez and caught him again. The teenager turned and hit Poitevent, who dropped his baton to the ground.
Mendez ran toward Aranda’s next-door neighbor’s house with Poitevent in pursuit. Aranda saw Poitevent sitting on top of Mendez, who lay face down. Poitevent was punching him in the back.
Poitevent tried to get hold of Mendez’s hands as he lay on top of him. Mendez yelled and cursed at Poitevent in English. The agent fought to place Mendez’s hands behind his back, but the young man pulled them away each time.
The agent tried to call for help on his radio, which was attached to his lapel, but Mendez pulled the microphone away from him. Poitevent noticed that the clasp that kept his pistol secure in his holster had opened. He thought Mendez was trying to grab his weapon.
Aranda’s husband, Joe Andrade, 39, had just finished his morning routine walking on the treadmill in their garage when he heard the men yelling outside. He went to the front door and saw his wife already outside. He watched Poitevent and Mendez struggling on the ground about 30 or 40 feet away. Andrade saw the agent punch Mendez two or three times on the back of the head.
“You motherfucker! You motherfucker!” Aranda heard Poitevent yell at the young man.
“Hey! You don’t have to swear at him,” she yelled at the agent.
“Ma’am, get inside,” Poitevent yelled back. “Get back in your house!”
Andrade saw Mendez get to his feet with the agent holding onto his back. Poitevent put the smuggler in a chokehold but, staggering with exhaustion, started to fall to the ground. He regained his balance and kept trying to subdue Mendez.
Gladys Olveda was looking in her bedroom closet when she heard yelling. The wife of a Border Patrol agent, she looked out her bedroom window and saw two men in her front yard. Poitevent stood behind the bare-chested teen with his arms wrapped around him. Mendez was wriggling away. Olveda stepped away from the window to look for her phone.
On the other side of the fence, Cazares had landed awkwardly and hurt his ankle. He had fallen into an overgrown stand of trees. From there, a pecan orchard has well-worn trails that lead through the brush to the Rio Grande.
Skirting trees and brush, he tried to run and soon came to a wire fence that he climbed over. As he ran toward a third fence, Border Patrol agents caught up to him and he surrendered. He didn’t know that on the lawn in front of the first fence, Poitevent and Mendez still were struggling.
Mendez slipped out of Poitevent’s grasp by turning around. He swung his arm, hitting the agent in the left temple with his fist, with enough force that Andrade heard the thud. Poitevent stumbled.
“I saw black, felt weak and feared I was losing consciousness,” Poitevent later said in a statement filed in U.S. district court.
Andrade and Aranda saw Poitevent buckle slightly from the blow to the head and grab the left side of his face with one hand. They saw the agent reach out with his other hand and grab Mendez by the back of the belt. Andrade saw Mendez trying to run away, with Poitevent holding on until the young man broke free again.
Olveda saw Poitevent grab Mendez’s pants, which slipped off his waist. He pulled them up as he again tried to run away, but the agent grabbed him and they hit each other. Mendez fought Poitevent off and then began to run at an angle away from the agent because a car blocked his way.
As Mendez ran, Poitevent reached for his gun.
“Due to Mendez’s size advantage, strength and aggression, as well as my exhaustion from the struggle, I feared losing consciousness and for my life,” Poitevent later testified. “I perceived Mendez as a threat who could turn my baton or my sidearm on me or a bystander and would not pass on the opportunity to kill me if I were unconscious.”
The witnesses say Mendez was 10 to 15 feet away when the agent drew his pistol from his holster and fired. The Border Patrol use-of-force report estimated Poitevent was 15 to 30 feet away.
“I stopped firing when I saw Mendez’s silhouette go down,” Poitevent said.
Olveda saw Poitevent standing when he fired the first shot. She saw blood on Mendez’s back when the first bullet hit him. She told an investigator that it looked like the young man stopped running and stood straight up when the bullet struck. It was 8:35 a.m., according to the death certificate.
Aranda said she heard but did not see the first shot. Her husband saw Mendez begin to fall.
There was a one-second pause. Then Poitevent fired again.
“The guy had his back to the agent the entire time,” Andrade said. “After he got away from the agent, I never saw him try to turn back around toward the agent.”
Andrade heard the second shot and saw it hit Mendez in the side as he already was falling. Olveda heard the second shot but did not see where it hit.
One gunshot struck Mendez in the right lung and heart, where it lodged. The other tore through muscle and his left lung. He fell and landed face down. His body came to a rest sideways with his head facing Olveda’s driveway and his legs facing the fence.
Jesse Cazares, in the custody of Border Patrol agents, heard what he thought were three gunshots. One of the Border Patrol agents put his boot on Cazares’ neck and head, the boy later told relatives.
Aranda looked at Poitevent and saw him pointing his weapon at the fallen teen. The agent called into his radio: “Shots fired! Shots fired!” But Poitevent did not get a response. He collapsed to his knees and returned his pistol to its holster.
“That’s when the Border Patrol (agent) fell on his knees and started crying,” Aranda said.
Andrade walked toward Poitevent. His wife, worried that the agent still had his gun, yelled at him to stay away.
Andrade put his hands up and asked the agent if he needed help. Poitevent sensed that Andrade was trying to help him and told him yes.
“He touched his face, I guess to see if he was bleeding, and told me to call 911 because he was trying to reach other Border Patrol agents on the walkie-talkie,” Andrade said.
He could see that Poitevent had a red mark on the side of his face, but there was no blood, swelling or bruising that he could see.
Poitevent called Hector Nunez, the Border Patrol camera supervisor. “I had to shoot him. I thought he was coming back at me,” Poitevent said into his phone.
Mendez lay on the lawn of Olveda’s home. He was screaming in pain, yelling and groaning for about a minute after he was shot. Andrade took a few steps toward the teenager and heard groans. Andrade noticed that Poitevent did not try to check on or help Mendez.
“Then he let out a weird sound and stopped moving,” Andrade said of the teenager. “I thought he was dead at that time.”
As Andrade walked back to his wife, several Border Patrol trucks zoomed past Wichita Circle. He told Aranda to call 911 and then called himself. She went inside to make the call and came back outside.
“I could still hear the Border Patrol (agent) crying and saying, ‘They’re going to convict me. I thought he was coming at me,’ ” she said.
Olveda heard Poitevent apologize.
“Perdóname,” he said. Forgive me.
Andrade was standing next to Poitevent when other Border Patrol agents started to show up a few minutes later.
Chaos in shooting’s aftermath
The first agent to arrive at the scene was Matt Sachse. He saw Taylor Poitevent on all fours. A civilian stood over him. As the 23-year-old agent approached, Poitevent looked up.
“Sachse, he’s gone. He’s gone,” he said.
Another agent with barely two years on the job, Charles Andrew Rabaut, 25, had arrived and followed Sachse. Poitevent told him to handcuff Juan Mendez. Rabaut did as he was told, restraining Mendez’s hands behind his back. Sachse ordered the neighbors to go back into their homes.
Poitevent kept talking. His face was red. His eyes were bloodshot from crying.
“I shot him. I shot him,” he said.
When Mendez didn’t move, Rabaut took off the handcuffs and felt for a pulse. Sachse helped Rabaut shift Mendez onto his back. Blood poured out of the bullet wound on his bare right side.
More agents arrived and began to perform CPR. Some held up a yellow blanket to block Mendez from view. Some tried to calm the distraught agent. Supervisors decided Poitevent needed to leave, and one took his pistol. Two agents helped put him in a Border Patrol sedan.
Agents brought Jesse Cazares by his cousin. An agent pushed his head toward Mendez and said, “Look what happened to your friend.”
“He’s not my friend,” Cazares replied. “He’s my cousin.”
Before the ambulance arrived, another Border Patrol supervisor told agents to make room for the paramedics by moving their trucks, including Poitevent’s.
Just shy of 15 minutes after the shooting, the first Maverick County sheriff’s deputies arrived at Wichita Circle and saw the Border Patrol agents lead Poitevent away. An ambulance arrived five minutes later. Mendez was taken to a local hospital, where he was declared dead at 9:21 a.m.
When Robert Sifuentes, an investigator with the sheriff’s office, pulled up soon after, he saw a chaotic blur of Border Patrol agents who had trammeled the crime scene. A Border Patrol supervisor told him that the federal agency would be in charge until the FBI arrived to take over. The shooter already had left. Sifuentes called his boss.
Tomas Herrera, the Maverick County sheriff at the time, was in San Antonio when word reached him that there had been a shooting, which his office had jurisdiction to investigate.
With 34 years of law enforcement experience along the border, Herrera had developed a solid working relationship with the Border Patrol. His office built a reputation for aggressively pursuing drug trafficking. He relied on federal funding from a homeland security initiative called Operation Stonegarden – administered by FEMA but heavily influenced by the Border Patrol – to buy weapons and equipment for his deputies and investigators. They worked well together.
There was another problem. Eduardo Lopez, Herrera’s investigations coordinator, called to tell the sheriff there weren’t any Texas Rangers available to investigate the shooting. As was a common practice for other Texas border sheriffs, Herrera typically asked the rangers to help investigate crimes ranging from homicides to officer-involved shootings. The rangers assigned to the area were in a training session hundreds of miles away.
Herrera called the director of the Texas Department of Public Safety, Steve McCraw, a former FBI agent, to see if he could get assistance. He’d been supportive of McCraw’s selection to lead the agency and knew him personally. Five minutes later, Herrera said, rangers were released from training and told to report to Eagle Pass. The FBI informed Lopez that the sheriff’s office was in charge.
Soon, an alphabet soup of federal agencies – including the FBI and the Department of Homeland Security inspector general, which has oversight of the Border Patrol – flooded Wichita Circle. With turf battles over investigations into misconduct and corruption along the border, a pecking order exists, a remnant from when the Department of Homeland Security was created in 2002.
The FBI stands on top alongside the homeland security inspector general, followed by Immigration and Customs Enforcement’s Office of Professional Responsibility. Customs and Border Protection’s own internal affairs office sits at the bottom.
And in Eagle Pass, one of the first agents to respond was Luis Valderrama, an internal affairs agent with Customs and Border Protection who lived there.
Two years into the job, Valderrama had a reputation for bucking management and “bleeding green,” – the color of the Border Patrol’s uniform – suggesting a deep loyalty to the Border Patrol, where he worked for more than 20 years before joining internal affairs.
Poitevent, meanwhile, was on his way to the Border Patrol station.
“Along the way, Taylor made the comment, ‘I didn’t want to do it, but I had to do it,’ ” Carlos Lopez, a Border Patrol supervisor, said in a statement to the rangers. “I told him that he was only defending himself and it was either you or him.”
At the station, Poitevent spoke with the patrol agent in charge, Carlos Cantu, before he was taken to an area hospital for treatment. There is no public record of what they discussed.
Valderrama wasn’t assigned to investigate the case, but he took an interest. He later showed up at the hospital where Poitevent was taken.
At the hospital, Poitevent had to be helped to the bathroom and suffered post-traumatic anxiety, according to an investigator’s report. He reportedly had a bloody nose, dizziness and a concussion. He also had difficulty breathing, loss of consciousness, weakness and an elevated heart rate, all of which were recorded after 10 a.m., nearly two hours after the fight.
Word of the shooting soon made it to Washington. The Border Patrol called the commissioner’s situation room at 10:31 a.m., according to what’s known as a significant incident report. The bare-bones report gave sketchy details of the shooting, but officials soon learned about Poitevent’s statement about his fear of facing conviction.
James Wong, the former deputy assistant commissioner for internal affairs, said that senior managers within Customs and Border Protection talked about the shooting and the “incriminating spontaneous utterance” that the agent cried out. But Border Patrol managers said they thought it was “a good shoot.”
“That was almost the stock response to any Border Patrol shooting – it was a good shoot,” Wong said of senior Border Patrol officials. “We in internal affairs, recognizing the admissibility of spontaneous statements, doubted the conclusion of Border Patrol managers. It was just a totally different mindset.”
Just before 4:30 that afternoon, an old-school Texas Ranger named Coy L. Smith arrived in Eagle Pass to join the investigation. Smith wasn’t happy about being excused from the training seminar, agents recalled. The sense among law enforcement in Eagle Pass was that he didn’t like visiting their town, period.
At the sheriff’s office, Smith met with the sheriff, Eduardo Lopez and others. He then took over the evidence that deputies, the FBI and the Border Patrol had gathered, including photographs and other paperwork.
With 34 years in law enforcement and two years shy of retirement, the gruff and lantern-jawed lawman had ascended the ranks of the state’s Department of Public Safety. After starting out as a Texas State Trooper in 1977, Smith became a ranger in 1987. Since then, he’d been posted in Uvalde, about 60 miles northeast of Eagle Pass.
Texas Rangers take over
In the days after Juan Mendez died, the Maverick County Sheriff’s Office put out a statement about the shooting. Officials said Mendez was shot in the back while unarmed but did not elaborate. Something about the shooting didn’t sit right with Sheriff Tomas Herrera.
“I wasn’t going to cover up the facts for anyone,” he later said. “I just stated the facts.”
The Border Patrol, Herrera learned, did not like this. Shortly after, agents stopped shaking his hand. They no longer acknowledged him when they passed each other on county roads and highways. After the FBI bowed out, Coy Smith and the Texas Rangers took over, conducting the investigation over the next few months.
“The rangers were supposed to be helping us, but they pushed us aside,” said Robert Sifuentes, the Maverick County sheriff’s investigator.
The rangers obtained written statements from 10 Border Patrol agents who arrived after Taylor Poitevent had shot Mendez. They interviewed the Wichita Circle residents who witnessed the shooting. In front of other investigators, Smith fired Poitevent’s weapon to measure the distance the bullet casings ejected. With other investigators and agents, he reconstructed the crime scene.
He reviewed medical and criminal records, autopsy and toxicology reports, Jesse Cazares’ written statement, the Maverick County sheriff’s reports – which listed the shooting as a homicide – and came to his conclusions without interviewing Poitevent. He did not report whether he met with or spoke to any of Poitevent’s supervisors. He did not interview any of Mendez’s family members.
Legally, Poitevent didn’t have to talk to investigators. Internal affairs agents could compel him to give a statement but only for administrative purposes – to determine whether his use of force was within agency policy – not part of a criminal investigation. The powerful Border Patrol union set him up with an attorney. Poitevent didn’t say anything to investigators.
Smith focused on several things. Mendez had marijuana and cocaine in his system, according to the toxicology report, which gave him “an extraordinary amount of strength.” Such strength powered a punch by Mendez that “was so violent that Poitevent collapsed and fell down,” in Smith’s words. “Had Poitevent lost consciousness after being struck, his handgun would have been easily accessible to Mendez.” The investigation’s title suggests a focus other than the death of Mendez – “capital murder of a peace officer or fireman … attempt to commit.”
He completed the 39-page report in early 2011, then forwarded it to the local district attorney’s office. The FBI also asked for a copy, which it shared with the Department of Homeland Security’s inspector general and federal prosecutors. Maverick County Sheriff’s Office investigators said they never saw Smith’s report – it was sent to the district attorney’s office instead–until a reporter shared it with them.
Although Smith’s report had errors and minor inconsistencies – the address where Mendez died, the time Poitevent started his shift, the weight of the drugs seized, to name a few – his conclusion was clear. Poitevent did nothing wrong. Mendez was high on drugs,had a long criminal record, Smith pointed out, and he was barely 18.
“Poitevent produced his handgun obviously to protect himself and possibly those nearby,” Smith wrote. “All other efforts to effect Mendez’s arrest had obviously failed according to the witnesses. The violence Mendez was inflicting was escalating and there has been no evidence procured to indicate Mendez was even remotely considering complying with Patrol Agent Poitevent’s instructions.”
The response – two bullets in the unarmed man’s back as he ran away – was justified. The report listed the victim as Taylor Poitevent.
Chain of command
The FBI is the nation’s lead law enforcement agency for investigating civil rights violations. But FBI officials say that with border shootings, the agency’s typical response starts with a different concern – was there an assault on a federal officer?
With that in mind, the FBI often defers to state and local officials for homicide investigations if there doesn’t appear to be an assault. The bureau also relies on other federal, state and local agencies because agents don’t want to conduct parallel investigations that may muddy evidence and witness statements.
“We wouldn’t hesitate to rely on the professionalism of the local law enforcement agency to provide witness in a federal case,” said Adam Lee, who until recently was the bureau’s national section chief for public corruption and civil rights.
Geoffrey Alpert, a criminal justice professor at the University of South Carolina who has studied police force issues, believes the FBI historically has looked at border shootings the wrong way.
“They shouldn’t look at (whether there was an) assault on a federal officer,” he said. “They should look at the decision to pull the trigger: Was it constitutionally justified by policy and ‘awful but lawful?’ ”
Local police agencies along the border, often poor and understaffed, can’t be expected to investigate such shootings alone, he said.
“They are totally dependent and dwarfed by the Border Patrol for resources,” he said. “It’s not a conflict of interest, but it raises eyebrows. There are lots of questions that need to be asked that aren’t being asked.”
The same argument could be made for the Texas Rangers. Several local law enforcement officials did not want to speak publicly about Coy Smith’s investigation out of fear of offending the state agency.
Lou Reiter, a retired deputy Los Angeles police chief who consults on internal affairs investigations and police use-of-force policies and practices, questioned the thoroughness and objectivity of Smith’s report.
The report “seems to be very slanted in the whole composition of it,” he said. “He’s not investigating what people are telling him. He’s just reporting what he’s being told. By doing that, you just become glorified reporters rather than investigators.”
The Texas Rangers did not see it that way. Among Smith’s performance goals for the following year was to “continue to complete accurate and professional reports and strive to reduce errors,” according to his 2010 job evaluation.
Proving excessive use of force beyond a reasonable doubt remains a tall barrier for prosecutors. As long as agents can articulate an “objectively reasonable” fear – even if they put themselves in the path of danger by making poor choices – the use of deadly force often is found to be justified. It doesn’t matter what others believe, said John Murphy, the former acting U.S. attorney for the Western District of Texas. It’s what the agent perceives.
“We don’t try to put ourselves in the shoes of the policemen, but we try to look at it as objectively as possible,” Murphy said. “Was that a reasonable response to a situation based on all the information that the agent had at that time? Did they have a reasonable fear for themselves or for others? Those can be tough choices.”
On April 5, 2011, the FBI told Smith that both the U.S. Justice Department in Washington and the U.S. attorney’s office for the Western District of Texas had closed their investigations into the incident. Neither found any fault in Taylor Poitevent’s actions, according to the Texas Rangers’ records. What to do next about Juan Mendez’s shooting fell to the local district attorney’s office.
An unusual decision
In the nearly two decades that Roberto “Bobby” Serna had been the district attorney for the 293rd Judicial District, which includes Maverick County, he had navigated more than one political storm that befell his office, including employees and former employees who had been indicted for corruption-related charges. Politics and the law were also a family business of sorts. His father had been the sheriff in neighboring Zavala County, where his brother also was the county attorney. He has won re-election repeatedly with little competition.
With two assistant district attorneys and just a few investigators, the district attorney’s office has a large area to cover with few resources. Serna didn’t take long to decide that a prosecution wasn’t in the cards. A month after the FBI told Coy Smith that the Justice Department had declined prosecution, Serna’s office sent a letter to John Murphy, the acting U.S. attorney in San Antonio, referring the matter back to the federal government.
Smith’s characterization of the shooting as an attempted capital murder of Taylor Poitevent was technically incorrect, because a Border Patrol agent isn’t recognized as a Texas peace officer, Serna wrote. Smith acknowledged this error, Serna said, but the classification was made by the Texas Department of Public Safety for “internal purposes.”
Because a Border Patrol agent isn’t a Texas peace officer under state law, Serna argued, there was no applicable part of the law to use to view the shooting. Poitevent was on duty when the shooting occurred, not a civilian acting in self-defense. It was better left to the federal government to decide whether Poitevent was right or wrong in his decision to shoot Juan Mendez.
In forwarding the investigative materials to the U.S. attorney’s office, Serna wrote, “We do not presume that this material would be of such a nature that it should mandate a change in position as to whether the actions of Agent Poitevent were appropriate.”
It was a curious decision. While there isn’t consensus on whether it was a justified shooting, local and federal law enforcement officials couldn’t understand why Serna didn’t at least present the case to a grand jury. To do so is standard in most police shootings and well within his authority, according to the Texas District & County Attorneys Association.
“Why Mr. Serna took that position, I have no idea,” said former Eagle Pass Police Chief Tony Castañeda, who at the time of the shooting was in that post but not part of the investigation. “He’s a political man besides being an attorney and a district attorney. Maybe he doesn’t want to make enemies.”
That could extend beyond the Border Patrol to the Texas Rangers. Just as the county sheriff relied on the rangers for various investigations, so did the district attorney’s office. To go against the rangers’ report could risk offending the agency and jeopardizing the relationship.
Local prosecutors don’t have to meet as high a standard to seek charges as federal prosecutors do to show negligent homicide in a shooting death. Some local district attorneys still may balk at probing a shooting that involves a federal agent because such prosecutions are costly, may not sit well with constituents and can be moved by the U.S. Justice Department to be defended by federal trial attorneys in district court, said Murphy, the former acting U.S. attorney.
“I’m not aware of any statute in Texas state law that precludes a district attorney from prosecuting a federal agent,” he said. “As a matter of resources and practicality, it’s not going to happen.”
Yet, in neighboring Webb County, the district attorney’s office had done just that a few months before Poitevent killed Mendez, in a fatal shooting that involved another on-duty Border Patrol agent named Phillip Oelfke.
Oelfke, 24, and two other agents had interrupted a smuggling attempt in Laredo when a Mexican smuggler, Victor Santillan, 36, started to struggle with the inexperienced agent. Oelfke drew his weapon and shot once, striking Santillan in the chest from less than a foot away.
Oelfke declined to talk to local investigators. But he did speak with an FBI agent the night of the shooting. The account he gave was similar to Poitevent’s. There was a struggle. The smuggler tried to reach for the agent’s pistol. Oelfke hit the man multiple times around the legs with his baton. The agent lost control of the baton, which fell to the ground. Oelfke drew his pistol and shot the smuggler.
Local authorities weren’t satisfied and presented the case to a grand jury. A month before Mendez died, the grand jury did not return an indictment, clearing Oelfke of any wrongdoing. The Justice Department also declined to prosecute.
(A little more than two years later, Oelfke was involved in another incident in which he rammed and injured a fleeing migrant with his Border Patrol truck. While some in law enforcement thought the incident was suspicious, it was not presented to local prosecutors for review.)
Marisela Jacaman, the chief assistant district attorney for Webb County, said presenting the prosecution to the grand jury was the right thing to do. The matter, if not totally answered, was at least resolved.
“It would have been helpful to know what happened from the shooter,” Jacaman said. “We hold law enforcement to a high standard. As hard as it is to prosecute our own, we do.”
Robert Lee Little, an assistant district attorney in Maverick County, said it would have been helpful to have known about Webb County’s decision to present a Border Patrol shooting to a grand jury. But he wasn’t sure it would have changed the outcome.
For family, more tragedy
In the months after Juan Mendez died, Jesse Cazares stopped visiting the Mendez home. He thought the family was angry with him. Sometimes he went down to the river and threw rocks at the Border Patrol, said his mother, Diana Rosales. He’d say things like, “I want to kill the Border Patrol,” because of what they did to his cousin.
“Jesse, he used to cry after what happened to Juan,” she said. “It affected him.”
Cazares told the Mendez family that they would be paid by people in Mexico, a kind of life insurance because their son had died while smuggling. The family wanted nothing to do with it.
In May 2011, Mexican marines detained Cazares for six days, but released him because he was a U.S. citizen, his mother said. Why he was detained remains unclear. In December, a little more than a year after his cousin was shot, Cazares died in Piedras Negras after a car chase and shootout. Mexican marines had chased a truck in which he was a passenger onto a dead-end street. Everyone else got out and ran, but Cazares did not. The marines fired into the truck.
Rosales didn’t say whether her son was armed, but there were weapons in the car. It was a shooting, just like any of the other hundreds of shootings, she said. She hadn’t seen her son, then 16, in the month before he died.
Details of Cazares’ short life are sketchy and contradictory. His mother said her son was a good boy who didn’t study because he needed to support her and his siblings as his father was locked up. She said he never told her what he did, just that he had to work.
Sitting at a scuffed kitchen table in her small home in Piedras Negras, where she sells used clothes from her front doorstep, Cazares’ mother struggled to describe what her son wanted to be as an adult, because she didn’t know or he didn’t know. “He wanted to study, to work,” she said. “He wanted to go to the U.S. and work on the (oil) pipelines. He wanted to be a worker over there.”
The Texas Rangers officially closed their investigation into the Juan Mendez shooting on Jan. 11, 2012, though the local district attorney’s office had made its decision months earlier not to pursue prosecution. The next day, the homeland security inspector general, having relied almost entirely on the rangers’ and FBI reports, closed its investigation. James “Kirk” Beauchamp, the regional special agent in charge for the inspector general’s office, signed the final report of investigation. The matter was over for the Mendez shooting and prosecution of Taylor Poitevent.
In late July 2012, Maverick County Sheriff Tomas Herrera lost his re-election bid to a former Border Patrol agent. Coy Smith retired with an honorable discharge in August 2012. Soon after, a federal grand jury in the Western District of Texas indicted Celso Martinez, the trafficker for whom Cazares allegedly worked, shortly after his capture in Mexico. Among the charges was one count of employing a minor in drug operations. The U.S. government has requested his extradition from Mexico.
In October 2012, Mendez’s parents and girlfriend filed a still-pending lawsuit in federal district court alleging Poitevent’s excessive use of force.
Rethinking what happened
Short on answers
On a crisp morning last fall in Eagle Pass, Tomas Herrera brushed off any questions about Los Zetas and the disappeared. The former Maverick County sheriff wasn’t going to talk about that. It was too dangerous.
For more than a year, the silver-haired Eagle Pass native had rebuffed repeated requests from a reporter to talk about the effects of juvenile drug trafficking on his county and local high schools. Since he lost his re-election bid for sheriff in 2012, he had stayed out of the public eye. But now, sitting in a booth at a local restaurant, wearing his customary cowboy hat, eyeglasses and an ironed button-down, he had something to say about the shooting death of Juan Mendez.
Maybe it was the fact that he was about to travel to San Antonio for surgery. Or he was mulling another run for elected office. But for the first time, he said publicly what had been on his mind for more than three years.
“I don’t believe that shooting was justified,” he said in a deliberate if hushed voice. “The agent didn’t need to shoot him.”
Herrera thinks the statements about the shooting may have cost him his re-election. But it was the right thing to do.
“The Border Patrol gets away with everything,” he said. “Resisting arrest doesn’t give an officer the right to kill someone.”
In Herrera’s view, Taylor Poitevent had concocted a ridiculous story that he was discombobulated in the struggle. Mendez never turned around. If he had looked back, it would be a different argument, Herrera said.
Herrera has more questions than answers about the investigation into the shooting and the district attorney’s decision not to prosecute. He suspects politics played a role, a charge District Attorney Roberto Serna strongly denies. The former sheriff isn’t alone in this suspicion. If Poitevent had been a state or local law enforcement officer, Javier Gonzalez – the former juvenile probation officer – and others believe, he would be in prison.
“Poitevent didn’t look so bad,” said Robert Sifuentes, the hulking Maverick County Sheriff Office’s lead investigator for the shooting. “There was no welt or blood.”
What also stands out for Sifuentes is Poitevent’s statement that he believed Mendez was trying to grab his pistol. Poitevent carried his weapon in a Blackhawk Level 3 holster, a model popular with law enforcement because it secures the pistol in ways that the untrained would have a hard time freeing.
Mendez would have had to know how to unlock the two safety clasps and been in a position to do so to draw the pistol. In the heat of the struggle, that would have been difficult to do, Sifuentes said.
“Nobody ever said Mendez was trying to reach for his gun,” he said.
Others dismiss Herrera. Some disagree that his statement cost him the election. Rather, they say, he was on the wrong side of the local political machine. But the power of the Border Patrol can’t be denied. The agency is by far the largest law enforcement presence around.
In the years after the shooting, rumors and speculation about Mendez, the shooting and the investigation have lingered around Eagle Pass: Mendez had spent months at a juvenile facility before the shooting. He was pummeling Poitevent. Serna didn’t seek prosecution because the judge who had sentenced Mendez to probation previously had been too lenient on him.
Among officials in local law enforcement circles, however, there was some consensus: Police don’t get to shoot people in the back.
Tony Castañeda, the former Eagle Pass police chief, said he found Coy Smith’s conclusions strange. He also was surprised that the Texas Rangers didn’t call for a special prosecutor from the Texas attorney general’s office to examine what happened.
“To me, it’s a clear-cut civil rights violation to shoot someone in the back when they’re running away – even someone with a criminal history,” he said. “Frontier justice doesn’t apply.
“My gut feeling? The young man got beat up, got scared and just pulled out his gun and took a shot at him,” he said. “If you’re not thinking clearly and collectedly, you can very quickly resort to using the maximum force to remedy the situation, which is wrong.”
The Border Patrol has not released its findings about the shooting, if the agency conducted such an inquiry. The agency’s use-of-force policy at the time required such a review, but that doesn’t mean they were always done, James Tomsheck, Customs and Border Protection’s former internal affairs chief, said in an interview.
Customs and Border Protection has not responded to a Freedom of Information Act request seeking such materials. The agency’s internal affairs office never interviewed Poitevent or took a statement. For top internal affairs officials in Washington, it wasn’t for a lack of drive or interest, James Wong said.
“Internal affairs has always taken as an aggressive posture as possible, but we have been stopped by many things – the Border Patrol, the homeland security inspector general, Immigration and Customs Enforcement, internal politics,” he said.
That was the case here, he said. Its hands tied, internal affairs sat back and waited, in the dark about the ongoing investigation, prohibited from taking an active role. And then came the Justice Department’s conclusion.
“It came as a shock that given what was discussed at the time of shooting, that the case went nowhere,” Wong said.
Wong added that he recalled seeing an earlier significant incident report that mentioned Poitevent’s cry about being convicted. Two versions of the report, released to CIR through a Freedom of Information Act request, make no mention of Poitevent’s statement, though portions are blacked out.
Roy Fiveash, who retired as the top internal affairs agent in Del Rio with Customs and Border Protection in 2013, said there were some things about the shooting and its aftermath that seemed odd. Poitevent’s fearful cry about getting indicted, for instance, or the decision, if Poitevent was as badly injured as the Texas Rangers’ report states, to take the agent to the Border Patrol station before the hospital. Normally, the agent would go to the hospital first unless he refused medical treatment.
Fiveash acknowledged that Coy Smith’s report appears to be written in favor of the agent, but he didn’t think the ranger would protect a fellow law enforcement officer unless he believed the shooting was justified.
“Everything was based on that ranger’s report,” he said. “From that report, you clearly will never get an indictment.”
And yet, Fiveash said, there was some fear that Poitevent could have been indicted. That sense was spurred, in part, by the fact that Poitevent never made a statement to internal affairs agents – at least as far as Fiveash is aware.
“I personally think it was probably barely a good shoot,” Fiveash said. “I wouldn’t have shot the kid. But people do strange things when they’re on the losing end of a battle.”
To Charles “Dob” Cunningham, a former Border Patrol agent, Eagle Pass port director, rancher and longtime border resident, Herrera’s statements highlighted other suspicions.
“People got to thinking, ‘Tom’s in bed with the dopers,’ ” Cunningham said. “That’s why Tom Schmerber got elected. People wanted to get an honest person not in the dopers’ pocket.”
Cunningham, 80, was among those who believed the shooting was justified because “the kid was beating the hell out of the agent.” He said Herrera is a good guy – a close friend of his – but “he put out lies” when he said the agent shot Mendez in the back while he was running away.
“Some of these people probably need to be killed,” he said, speaking of drug traffickers, whom he groups with “psychopaths and the criminally insane.”It’s easy to understand the fatigue and frustration that comes with the constancy of drug trafficking and the violence that shadows it. From a tall bluff on his 800-acre ranch that fronts the Rio Grande, Cunningham has had a front-row seat to drug trafficking for decades.
“It’s like water,” he said of the drugs that flow across the border. “It just keeps coming.”
On the other side of the river in Mexico, traffickers have commandeered his neighbor’s ranch, blocking the owner’s access to the property and informing him that they owned the land for the day. He recounted how the day before, he watched two men dressed in fatigues slip across the border.
Teenagers and other young men used to work the area’s farms and ranches for spending money, he said. But now, they haul marijuana one time and make more money in a day than what they would earn in two months’ work at the ranches.
“If you’re a kid over there, you don’t have any hope,” he said. “I’d get to hauling dope or whatever else it took.”
He railed equally against the Border Patrol for its hiring practices and unwieldy growth and the Justice Department for prosecuting patriotic agents for civil rights violations.
But when presented with more information about the Mendez shooting, Cunningham wasn’t so certain that Herrera had told lies.
“I’m sure that Border Patrolman was wrong,” he said, and recounted a story about how he once was attacked with a screwdriver while on duty but didn’t shoot. “Getting punched comes with the job.”
Question of credibility
There is a saying along the border about lethal force that asks a question more philosophical than legal: “Did he need killing?”
A few federal law enforcement officials hinted at this in discussing the Juan Mendez shooting, or at least couched it as “better the smuggler got it than the agent.”
Coy Smith said he did not see it this way.
“There is no such thing as a good shooting,” Smith said. “It is not a good shooting when someone loses their life or when an agent has to go through what this agent has.”
Smith declined to speak at length about the shooting or his investigation, citing the pending lawsuit in which he’s a witness. But the former ranger voiced no doubt about his conclusion, bolstered by the fact that prosecutors took no action.
“Everything the Border Patrol agent did was legal. Nothing he did was wrong,” Smith said. “The evidence speaks for itself.”
Randy Burton, founder of the national child advocacy organization Justice for Children, said the facts Smith chose to include in the report go beyond the scope of the investigation, however. Taylor Poitevent wouldn’t have known about Mendez’s juvenile record at the time, so including it in the report was irrelevant.
“It’s kind of like saying, ‘He deserved to be killed,’ ” said Burton, a former chief prosecutor of family crimes for the Harris County district attorney’s office in Houston. “I’d put that in the category of ‘He needed killing.’ ”
Smith said the FBI forwarded his report to the Justice Department because it was the most comprehensive, and the department based its decision on his work.
In his 36 years in law enforcement, Smith said he never had a bad experience with the Border Patrol or came across a bad or dirty agent. All had good training. All were good at their jobs. All were professional. He had no problem with any of them.
“That’s bullshit,” said Tony Castañeda, the former Eagle Pass police chief. “A lot of Border Patrol agents get arrested for various things – beating up on their wives, narcotics trafficking, DUI, bribery and corruption, extortion. We’ve had several arrested in Eagle Pass.”
In fact, Smith had known of at least one agent suspected of corruption, according to a Texas Ranger report obtained through a public record request. In spring 2005, Smith was asked by the Uvalde County sheriff to meet with him and a local resident, who told Smith about supplying cocaine to a Border Patrol agent in Uvalde named Jose Ochoa. Three years later, Jose Hector Ochoa, who was assigned to Uvalde, was busted for pocketing $2,500 out of a car parked on the side of the road and not reporting it as part of a sting “integrity test” operation.
In the Mendez shooting, Smith also said it isn’t significant that Poitevent cried out that he’d be convicted.
“You can’t use one statement to define an entire incident,” he said. “It’s ridiculous to think that it would.”
Three years after federal prosecutors declined to prosecute Poitevent and long after investigators closed their probes, the case remains officially open for the Justice Department’s Civil Rights Division in Washington. Although it’s standard to write a memorandum to close a case, this has not been done.
The Justice Department would not comment on why the case remains open, nor would it release records under the Freedom of Information Act because it’s still pending. The FBI also declined to release records because the Justice Department still has an open case.
Justice Department spokeswoman Dena Iverson declined to say whether the Civil Rights Division was actively investigating the matter or if the reason the case was not closed officially was because overburdened prosecutors simply hadn’t gotten around to writing a closing memo.
Still, Joe Andrade, the witness who offered to help Poitevent the day of the shooting, has his doubts. He admits that he did not see the entire fight, but as far as he could see, Mendez was just trying to get away.
“This guy was never reaching out for the gun,” he said of Mendez.
In Poitevent’s emotional response, his crying and yelling in grief that he was going to get in trouble, get convicted and lose his job, Andrade saw remorse.
“I do feel like he felt like he shouldn’t have used excessive force,” he said.
Although Mendez’s punch did shake up Poitevent, it did not appear to Andrade to be hard enough to knock him out. He did not see any blood on the agent’s face. The young agent still had his senses, as far as he could tell.
“He got a little bit rattled,” Andrade said. “He buckled a little bit. I don’t like the word ‘dazed,’ because it seems like that goes hand in hand with a concussion. He still knew what he was doing.”
But when Andrade spoke with Smith, who recorded the latter of their two conversations, he said the ranger made a point to tell him that Poitevent was bleeding.
“He did try to make it sound like the agent got punched in the face and make the justification that because he was bleeding, it was OK to shoot him,” Andrade said. “I’m not about to get into an argument with a Texas Ranger.”
When Smith left his home, Andrade said he and his wife both sensed that Smith was trying to justify Poitevent’s actions. To them, the ranger bent over backward to protect the agent. It seems to Andrade that the Border Patrol is above the law.
“It surprises me that nothing was done,” he said. “I don’t feel the kid received any justice.”
More than a decade before, Smith had investigated the shooting of an unarmed marijuana grower by a sheriff’s deputy in Real County, in the Texas Hill Country. The grower, who already was fleeing federal charges in South Dakota, was shot in the leg while running away from a deputy, who fired his pistol to warn and then stop him.
The deputy said he shot at the grower, a South Dakotan named Bradley Ham, because he thought the fugitive was running toward an unlocked patrol vehicle with weapons inside. Based on Smith’s investigation, the deputy was cleared of any wrongdoing.
The grower, whose lower left leg was amputated because of the gunshot injury, sued in federal court. In a deposition, Smith explained that past experiences – in general and specific to him – had influenced his opinion that the shooting was justified.
“The fact (is) that in many instances, many instances, fleeing felons cause harm to the public in trying to avoid capture by the police. It’s documented on a daily basis,” he said.
The deputy’s “action prevented other people from being injured or killed or used as a hostage or any other kind of act of violence,” Smith said. “And it’s a fact, in other instances, that had Bradley Ham been let go, there was the potential for greater harm to occur.”
As he often did after trial, U.S. District Judge W. Royal Furgeson interviewed the jurors to get their feedback. The judge, who is now retired, then shared their views in a letter he wrote to the lawyers involved.
The jurors did not have kind things to say about one witness – Smith. They thought he was not credible, but did not say why specifically.
“They basically disregarded his testimony in its entirety. They even seemed shocked that he had risen to the rank of Texas Ranger,” Furgeson wrote. “This is the first time in my experience as a judge that a jury has been so critical of a witness. Except for Ranger Smith, all the other witnesses, including the two parties, were seen as doing their best to tell the truth.”
Calling into question a law enforcement officer’s credibility seems like it would jeopardize, if not outright end, a career. But not Smith’s.
The Texas Department of Public Safety won’t say whether officials knew about or received the judge’s letter or allegations against Smith. The department’s director, Steve McCraw, declined an interview request. A search of department records found no documented concerns about Smith’s credibility, according to a response to a state public information request. The Texas Rangers 2008 work performance evaluation for Smith shows no issues and makes no mention of the federal judge’s letter.
“Sergeant Smith is well respected in his area among all law enforcement personnel as well as the community,” according to the review.
No place for young men
Perhaps more than any police report or family memory, the tombs of Juan Mendez Jr. and Jesse Cazares approach the truth about the short lives they lived. While both are buried at the Santo Cristo cemetery in Piedras Negras, Mexico,the dead cousins rest eternally under starkly different monuments.
Scattered trees sparsely shade the deceased, who line up, row after row, in concrete crypts. Elaborate tombstones often are paid for with narco dollars.
Cazares’ ornate headstone, a few dozen rows from his cousin’s and decorated with urns, flowers and an image of Jesus Christ, stands taller than those around it. Rumored to be a final gift from his mother’s cousin, the Zetas associate Celso Martinez, the memorial celebrates Cazares like he was a favorite son.
Above a blanket of pebbles painted green, a simple wooden pauper’s cross marks Mendez’s grave, plot 7 in a row of 32. Aside from his name and the word joven, or “young” in Spanish, the cross carries only the date he died, as if that were the one thing to remember.
“A lot of people thought, ‘Thank God he was killed – he was a troublemaker, a drug addict.’ I didn’t. Nobody should judge anyone,” said Perla Pardo, the former family friend. “When it happened, lots of people were bothered by it. Then something else happened, and people moved on.”
The deaths of the cousins were preludes of what was to come along this part of the border. In fall 2012, after the reported death of Zetas supreme leader Heriberto Lazcano Lazcano, Piedras Negras flared up like a war zone, raising concern that this stretch of Coahuila state could become the next Juárez.
Eagle Pass and Piedras Negras were the setting for several scenes in the book and film “No Country for Old Men,” but in recent years, the area had become no place for young men, either. There were daily shootings. Many of the dead were 16 to 25 years old. Among them were Pardo’s two brothers-in-law, ages 18 and 21, who died in November 2012. They were two of about a dozen deaths that week of men younger than 25.
Their shared tombstone stands a stone’s throw from Cazares’ grave. The younger brother, Victor, was said to be a Zeta, Pardo said. The older brother, Ruben, was not. They had also grown up with Mendez and Cazares.
“We have to keep trying to make change because of stories like Jesse, stories like my brothers-in-law, stories like Juan. That they grew up like that,” Pardo said. “We have to stop the problem.”
In summer 2013, more than a year after he was killed in Mexico and around what would have been his 18th birthday, Cazares’ U.S. juvenile probation records were sealed, something that doesn’t happen often in Maverick County. Bruce Ballou, the chief juvenile probation officer, said he could not comment on why or who had the records sealed, as he did not know. Calls to juvenile court judges were not returned.
Sealing a juvenile’s records usually requires an immediate family member to petition the court. But in some cases, law enforcement also can request to seal juvenile records, which already are confidential. Why those records are sealed is unknown.
The U.S. Justice Department has taken an interest in Mendez’s criminal history, however.
In their defense of the Mendez family lawsuit against Taylor Poitevent, government attorneys have argued that because the on-duty agent acted reasonably when the shooting occurred, he can’t be held liable. Pointing to both Coy Smith’s investigation and Poitevent’s own statement, they argue that Poitevent believed Mendez posed a threat. The judge should dismiss the case because those facts are not in dispute, government attorneys say. Mendez was the aggressor.
Nothing in the public record shows Poitevent acted aggressively while on duty or off in the two years before the incident. But he has had at least one questionable encounter since the shooting. In November 2013, a dive instructor named Kris Harrison approached the Border Patrol’s Sarita immigration checkpoint near Corpus Christi, Texas. Driving his modified Jeep Cherokee that was fully loaded with camping and diving equipment and had tinted windows, he’d crossed the border in Brownsville the day before on his way to San Antonio.
He told an inquiring agent he had U.S. citizenship and was asked what he had in the back of his truck. A patrol dog signaled that it smelled something, and Harrison was directed to a secondary area for more inspection. That’s where he met Poitevent, who demanded Harrison’s car keys.
Agents asked to search Harrison’s car, but he did not consent. In an exchange that escalated quickly, Poitevent grew increasingly hostile, ordered Harrison to sit down, threatened to arrest him, then slammed the traveler into a wall and handcuffed him before a supervisor intervened and told Poitevent to leave the room, Harrison said.
“He’s absolutely a hothead,” said Harrison, who was released an hour and a half after he was detained without agents searching his truck and continued on his trip. “The guy has absolutely no self-control whatsoever.”
Whether Poitevent faced any discipline is not public information. But another Customs and Border Protection employee who was indirectly involved with the Mendez shooting now faces scrutiny.
In May, the homeland security inspector general opened an investigation against Luis Valderrama on suspicion that he coached Poitevent on statements he made about the shooting. The inspector general’s office soon opened an investigation into the allegation. A spokesman declined to comment on the investigation, citing policy.
Customs and Border Protection’s Office of Internal Affairs pushed to place Valderrama on administrative leave in May after months of suspicion that he had coached Poitevent.
After Poitevent’s statement for the Mendez family’s civil lawsuit was filed in March 2013, James Gilligan, an assistant U.S. attorney defending the agent, began to interview internal affairs agents – including Valderrama – about inconsistent statements Poitevent had made. Did he first use a baton to strike Mendez to try to subdue him? Had someone coached the agent on what to say?
In an interview with CIR, Valderrama said: “I really believe in the mission, and I still support the mission” of the Border Patrol. He then referred a call to his supervisor, saying there were “some management issues going on.”
“I need to be careful,” he said.
The investigation of Valderrama is being overseen by Kirk Beauchamp, the same agent who approved the watchdog office’s first review of the Mendez shooting, which cleared Poitevent. A spokesman for the inspector general’s office had no comment.
Families’ emotional turmoil
On a chilly January morning, Sonia Sanchez sat on a couch in her sister’s drafty house, wiping away tears. Photos of her dead son – when he was learning to walk or as a teenager with a cigarette tucked behind his ear – are spread out across the family dinner table that doubles as a living room.
She said she hadn’t answered a phone in more than three years, not since her husband called from California to tell her that her oldest child was killed. Everything reminded her of him.
“I see him there in the backyard,” she said. “I see him sitting down here at the table. I see him in the bedroom, and so long as we are here, we will not get out of this.”
Gesturing to the dilapidated home around her, with holes punched in the ceiling showing exposed rafters, she said the depressed house reflected her state of mind since Juan Mendez – whom she called the joy of the house – died.
Her next oldest, Gerardo, who sat in a rocking chair a few feet away, blamed himself for his brother’s death because he had not warned his mother about his smuggling plans. In the years since, he has fought depression and spent time at five mental health hospitals.
The two agreed that if Mendez had tried to take Taylor Poitevent’s gun and use it against him or someone else, the agent had a right to defend himself and protect others. But they do not understand why Poitevent shot their loved one in the back as he ran away.
Sanchez said of Poitevent: “I hope, God willing, that he doesn’t have a life, that he loses his parents. That he loses his children, that he loses his job, and he loses the comfortable life he must have, truly; that he doesn’t have those privileges because he killed a person.”
Sanchez’s bitterness now sounds like a curse. Poitevent and his wife lost their premature twin daughters soon after they were born in March 2013. With the lawsuit against her son still in the balance, Poitevent’s mother, Pam, declined to speak at length about her son, whom she described as “a hell of a fine young man.”
“This has been a very trying thing for our whole family,” she said of the shooting, as she choked up. “It is very emotional for all of us. We are still living this every day of our lives.”
Reporter G.W. Schulz and researcher Rachael Bale contributed to this story. It was edited by Robert Salladay and copy edited by Nikki Frick and Christine Lee.
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