JUST SAY NO; SOME BORDER DAS FED UP WITH DRUG CASES

Tensions are growing between some border prosecutors and the federal
government. As the number of drug possession cases along the border
increases, the Feds are referring more and more of those cases to state
prosecutors, who are concerned about the financial drain on their
counties -- so concerned that some border DAs soon may not take them
anymore.

Laredo District Attorney Joe Rubio took action in mid-1997 by declining to
accept any more drug possession cases referred to his office by the Feds.
Rubio's main concern was that the Feds dumped dope cases on the state
without regard to the cost to the counties. Federal prosecutors in Texas
respond that they're handling as many drug cases as they can, but they can't
go it alone.

Rubio says his refusal doesn't sit well with the Feds. (The FBI is
investigating Rubio's office for misconduct and bribery-related charges. On
July 22, 10 people closely associated with him were charged with federal
crimes as part of an investigation into alleged influence-peddling in his
office. Rubio has not been charged with a crime.) But state prosecutors
along the border understand Rubio's position. They say they've been flooded
with drug possession cases because of increased enforcement initiatives by
federal agencies such as the U.S. Border Patrol.

In addition to concerns over funding to handle the cases, Rubio and other
border prosecutors aren't happy that they have so little say in which cases
they get from the federal government.

Yet federal prosecutors say they're trying to take the load off state
prosecutors, and one congressional official says grant money is available if
the state prosecutors would just apply.

The federal government started raising the threshold on what constitutes a
federal drug case, says Rene Guerra, Hidalgo County's DA. "And that kicks a
lot of cases to the state government."

Rubio says he made his controversial decision for Laredo's Webb County
because jailing state prisoners -- many of whom were snagged as part of a
federal border initiative -- was draining county coffers of nearly $1
million a year. When Rubio stopped taking federal drug cases at the end of
fiscal year 1997, his county actually made money -- there were no new cases
to pay for, yet the Feds still had to reimburse the county for the cost of
jailing prisoners involved in previously referred cases, he says.

State prosecutors in other regions are frustrated by the arrangement, which
is straining the cooperative spirit between federal and state prosecutors.

"Very rare is it that we have a fight over a case," says Bill Blagg, U.S.
attorney for the Western District. "But the state DAs resent what they feel
are all the small drug cases being imposed on them that come across the
border. They have to handle those cases."

Funding is part of the problem, too, Blagg says."The DAs in our district are
willing to share the cases but they feel like they're not in on the
funding," says Blagg, adding that state prosecutors need more than token
support from Congress.

Blagg hopes the state prosecutors will get some money from federal grant
programs. Much of the government grant and drug forfeiture money goes to
fund joint federal and state police task forces that generate the drug
cases, state prosecutors say.

Larry Neal, a spokesman for U.S. Sen. Phil Gramm, R-Texas, says Texas has
received more than $60 million in block grant money over the past two fiscal
years, and much of that money is available to prosecutors.

"Ultimately these programs are driven by who applies for the funding," Neal
says. "I could tell you that local sheriff departments and police
departments understand the value of applying."

Border prosecutors can and do apply for that money, Guerra says, but the
problem is the money is for restricted uses such as task forces and can't be
applied to costs associated with federal drug cases, including jail and
court-appointed costs. "Restricted-use funds really don't benefit us that
greatly," he says.

El Paso, for example, is receiving funds, but it's not enough to make a dent
in jail, court and defense counsel costs.

El Paso DA Jaime Esparza leads a group of border-area prosecutors in search
of solutions for their ever-increasing drug caseloads. He and other border
prosecutors met with U.S. Attorney General Janet Reno to ask for the
Department of Justice's help in their quest for federal funds.

Esparza says some federal officials seem concerned that if they help fund
state border prosecutions they'll have to honor similar requests from
non-border prosecutors.

"We're not just talking about any drug cases. We're talking about cases that
are tied to the border," Esparza says. "One of their troubles and concerns .
. . about resolving this is then do they open it up to all prosecutors
across the nation?"

If drug smuggling is stopped at the border, it wouldn't be as much of a
problem in other parts of the country, Esparza says. "It's a simple
argument. If we stopped it coming in, we wouldn't have to worry about
Chicago and Denver."

If the money isn't forthcoming, state prosecutors may soon draw the line on
taking federal drug cases.

"If we don't get anything in the budget for it, yes," says Heriberto Silva,
the DA for a three-county border area that includes Starr, Jim Hogg and
Duval counties. "We'd tell the Feds to take care of their own cases."

"I'm not saying that in a derogatory manner," Silva says. "I'm responsible
for anything that the local police or the DPS [Texas Department of Public
Safety] does. And I don't pass my cases on to them."

The millions of dollars it costs border counties to handle these cases --
including jail costs, court-appointed lawyers and court time -- are too much
for his area to bear, Silva says, especially Starr County.

"We're the poorest county in the state and maybe the nation," Silva says.
"So to ask the taxpayers to take care of this federal problem is not
reasonable."

Refusing to take the federal cases is a position that Esparza can
understand, but can't condone.

"I think the smarter thing to do is work with the federal government," he
says.

In the past four years federal drug and immigration enforcement has
increased and some border counties have seen their drug possession case
filings nearly double.

According to figures from the Texas Office of Court Administration, from
fiscal year 1995 until fiscal year 1998, Cameron County took about 500 drug
possession cases each year. El Paso County saw its caseload jump from 872
cases in FY '95 to 1,847 in FY '98. Webb County's drug possession cases were
cut in half after it stopped accepting them from the Feds at the end of FY
1997. [See chart.]

State prosecutors complain that the line between what's a federal drug case
and what's a state drug case varies from region to region. For example, the
seizure of 200 pounds of marijuana may be a federal case in one county, but
not in another.

Most of the border counties have one or more international bridges that are
focal points for drug arrests. They also have federal checkpoints farther
inside the counties that are targets for drug arrests.

Usually, federal prosecutors take the big drug cases involving several
hundred pounds of drugs and leave state prosecutors with the smaller cases.
But even within federal districts that dividing line varies, prosecutors
say.

"With a district as big and as diverse as ours is, we do have different
guidelines depending on the needs of the region," says Greg Serres, first
assistant U.S. attorney for the Southern District of Texas. His office
lowered the threshold for federal cases last year, he says.

And Blagg, the San Antonio U.S. attorney, says his office is also trying to
pick up the slack where it can with drug cases.

"To be honest with you, we lowered the guidelines a few years ago because we
wanted to let them know that we weren't just taking the big cases," Blagg
says. "We're trying to take some of the smaller cases, but the DAs get the
rest."

"The El Paso DA is not happy with us that we give them cases that come off
the bridge," Blagg says. "We can't just do every case."

But prosecutors want at least some say in what cases are referred to them.
"What we're looking for is just being included in making that policy," Silva
says.

Although his office hasn't kept statistics, Hidalgo County DA Guerra says he
knows exactly how the increasing drug caseload affects his disposal rate:
more pleas.

Rubio says his office could handle the extra drug cases, but it takes
prosecutors away from other work, such as child abuse and sexual assault
cases.

While border-area defense lawyers enjoy more appointments because of state
drug cases, they say the full dockets aren't forcing prosecutors to make
more deals to move those cases.

"I think they've been rather consistent," says Sib Abraham, a veteran El
Paso criminal-defense lawyer. "I don't think they're giving away cases. I've
not noticed any difference."