ACCUSED COPS' LAWYERS SEIZE ON FBI AGENT'S SECRET TAPES

Secret tape recordings between an FBI agent and his boss could help bolster
the defense of several former police officers who claim they were lured
into a drug trafficking scheme.

A federal judge has sealed the tapes and barred lawyers from talking about
them.

However, in a court hearing last week, defense lawyers requested extra time
to review the secret tape recordings and transcripts of conversations
between an FBI agent and his supervisor that included discussions of
entrapment, and promises of "big payments" to confidential police sources.

Bureau officials and others close to the investigation declined to comment
on why Special Agent Manny Rodriguez was surreptitiously taping his
supervisor, Tom Rocco.

Defense attorneys have asked the agent and his supervisor be made available
for questioning. Agents Rodriguez and Rocco could not be reached for comment.

Lawyers representing the accused former officers received transcripts of
Rodriguez's secretly recorded tapes about three weeks ago from the
prosecution, which is required to turn over documents related to the case.

According to the attorneys, the transcripts suggest an FBI source was told
to lie.

Defense attorney Albert Rodriguez said at the hearing that the transcripts
also contain references to payments made to sources in exchange for
information.

"There is also conversation between (the) special agent and his supervisor
about how sources will bring you more information if there is more money to
give them," he said.

Several defendants have challenged the FBI sting as an example of
"outrageous government conduct," arguing federal agents created the crime
they now are prosecuting and lured law-abiding officers into a
drug-trafficking conspiracy.

U.S. District Judge Edward C. Prado rejected that argument in a hearing
July 31. But last week, attorneys representing suspended San Antonio police
Sgt. Conrad Fragozo Jr., resigned patrolmen Patrick Bowron and Arthur
Gutierrez Jr., and Fragozo's uncle, Ed Fragozo, raised related defense
issues after reviewing the transcript of the agent's secret tapes.

Robert Grant, FBI assistant special agent in charge, last week defended the
FBI undercover investigation, which netted 10 local law officers and two
civilians in March.

"We are extremely confident of the case, regardless of the smoke that's
been surfacing," Grant said.

At the hearing, lawyers for the former police officers petitioned the judge
for more time to review the new information.

Because the tapes are under seal, they were guarded in their comments
before Prado last week, at times speaking cryptically about the tapes and
their origin.

"Here are these transcripts and here are these tapes," Fragozo's attorney,
John Convery, said. "You know, you have a supervisor, an agent discussing
among --"

The judge interrupted, "Well, we know what it is, so what is your point,
Mr. Convery?"

"The point is, they talk about defensive entrapment, they talked about the
source," Convery replied.

Convery said he would "like the government to write to any FBI agent
involved and, in fact, to the supervisors of the agency and ask them: What
were the discussions concerning the defensive entrapment?

"What were the discussions with the source? ... In these tapes, it says,
'We told this person to lie.' What was the lie? Who told that person to
lie? What did they tell her to say? How was she given that direction? Who
gave her the direction? Why was the direction given?"

Of the original 12 defendants, seven were accused of conspiring to protect
what they believed were cocaine shipments, supplied by FBI agents posing as
drug smugglers, in exchange for money. The sham drugs actually were
plasterboard bricks.

Assistant U.S. Attorney David Counts said the evidence at trial will show
the officers were not entrapped, but willingly committed the crimes.

"The defense has all the tapes, and they'll just have to make a
determination whether or not their clients would fare better after a trial,
or by pleading guilty," Counts said.

So far, five defendants have entered guilty pleas. Prado granted the
defense more time, resetting the trial date last week to Oct. 22 for Conrad
and Ed Fragozo, Bowron, Gutierrez and former officer Peter Saenz.

FBI spokesman Rene Salinas said he could not comment specifically on the
case, citing a gag order pertaining to particular information.

Albert Rodriguez, Ed Fragozo's lawyer, asked the court to review all
materials, especially the audiotapes.

"It is unbelievable how at critical points the tape is inaudible. There are
many, many redactions, which the FBI has determined to be irrelevant,"
Rodriguez said. "Your honor, at this point, I don't think the FBI should
decide what they want to keep from us. I think this court should decide
what is relevant and irrelevant."

Ronald Guyer, who represents Bowron, asked that the court review whether
there was an attempt to keep from the defense the amount paid to
confidential sources.

While paying confidential sources is a legitimate law enforcement practice,
St. Mary's University law Professor Geary Reamey said defense lawyers could
use evidence of large payments to undermine the credibility of informants.

"If they can show that someone has a financial stake in the outcome, it
gives the (informant) a motive to lie or overreach," he said.

Grant said that paying informants is a longstanding practice done with the
concurrence of prosecuting attorneys. He said most payments are
reimbursements for expenses the informants might have incurred during the
investigation.

As for lies told by confidential sources, Reamey said it's not illegal to
lie, per se, to people under investigation.

"Undercover officers do it all the time, and it's the only way they can
function," he said. "It really depends on what you are lying about."

For any entrapment defense to be successful, Reamey said, the government's
conduct usually has to border on the outrageous.

"The crux of entrapment is whether the government actually brought about
the crime, as opposed to merely giving the person an opportunity to commit
the crime," he said.

Even if a jury accepts that the government acted improperly, the jury very
often won't want to let the criminal go free, he said.