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Numbers Man

James DeAtley, the chief federal prosecutor for Houston, Corpus Christi and the Rio Grande Valley, doesn't look much like a used-car salesman. But according to a growing number of critics inside and outside his office, it won't be long before the U.S. attorney hits the late-night TV scene, leaning into the camera and shouting "C'mon down, podnuhs!! It's Dealing Days down here at the federal courthouse!! Jes' make us an offer!!"

Dealin' Jimmy D., who has the job on an interim basis, is doing everything it takes to beef up statistics for the Southern District of Texas. Critics say he's indicting cases the feds never would have touched in the past, and he's told prosecutors to accept plea-bargain offers that they would have laughed at a couple of years ago.

Morale among many of the 90 or so attorneys in the Houston division has cratered, as prosecutors are forced to spend time on what one called "small-time crap" at the expense of larger, more complicated cases.

The U.S. attorney's office formerly wouldn't touch a bank-fraud case unless it involved at least $50,000, says Larry Finder, a former prosecutor who also served an interim stint in the top job. Now, prosecutors say, the office is making federal cases out of bank tellers who embezzle $5,000.

Defense attorney Kent Schaffer says he has one client who's charged with stealing a single letter from a mailbox. The old "five-kilo rule" for drug cases is long gone -- whereas in the past, the feds passed on to local district attorneys any drug case that involved less than five kilos, now they're prosecuting cases on much smaller amounts.

"If people really knew what we were doing here, they wouldn't believe it," says one prosecutor, who demanded anonymity like all the current assistant U.S. attorneys now grumbling. "We're going out there and saying how wonderful it is that we've got all these statistics, but it's not wonderful when all those stats are small-time crooks who are going to get out the next day. That doesn't fight crime. We're going to get a lot of small-time people, but the big people, the ones who take millions but can afford to hire attorneys, the ones whose cases are going to be complicated and involve a lot of records and time, those people are walking away."

DeAtley, according to prosecutors, has been blunt in getting the message across to staff. "He says things like, 'I want you to do quick hits. I don't want my prosecutors on big cases that take a lot of time. I want them to rock and roll,' " says one.

"I've never seen anything like it anywhere else, and I practice a lot outside of Houston," says one defense lawyer.

For his part, DeAtley says he's confident of the way he's handling the office. He says he talked to local law-enforcement agencies and was told they wanted a bigger federal presence in fighting violent crime.

He says some of the increase in indictments in Houston comes from initiatives that target immigrants accused of violent crimes and felons who are arrested in possession of firearms.

"I make no apologies for saying that violent crime is an important issue in the great city of Houston, and that the U.S. attorney is going to do what he can to help address it," he says. "If there are people who are saying these are minor crimes that shouldn't be handled by the U.S. attorney's office, well, I simply don't agree with that analysis."

He says the upswing in activity -- districtwide, indictments are up about 50 percent over last year -- is not harming his office's ability to handle more complex cases. "If I believed that prosecuting what some people are apparently calling minor cases was impacting our ability to do the more complex white-collar and drug cases, I would take another look at it," he says. "But I don't think that's the case."

DeAtley came to Houston in October, after Gaynelle Griffin Jones resigned. He had been an interim U.S. attorney for Texas's Western District, based in San Antonio, for three years.

Jones's term had left the Southern District, especially in Houston, with a reputation for desultory performance; the fact that Department of Justice officials went outside the district to name an interim sent a strong signal of their low regard for the office. DeAtley quickly set about to change matters.

Initially, prosecutors cheered the jump-start, but in recent months, more and more have begun to question the policy.

"If there is a conspiracy case, he'll order it broken up into seven different individual indictments, just to build the numbers," says one veteran prosecutor.

Some observers think DeAtley is bringing more cases to please the various federal agencies involved, like the FBI, the Immigration and Naturalization Service or the Bureau of Alcohol, Tobacco and Firearms. The INS, especially, has seen its budget and work force grow as Congress valiantly protects American borders from immigrants, and the agency needs to justify the new money with more cases.

At least one prosecutor says INS agents have taken to cruising through local jails, looking for illegal immigrants picked up on minor charges and then filing federal cases against them.

In making a conscious effort to indict more cases, DeAtley is following in the dubious footsteps of former Southern District U.S. Attorney Henry Oncken, who angered judges in the late 1980s by tying up their dockets with what they saw as minor cases. Oncken was soon out of a job.

DeAtley is taking steps not to draw the judges' ire. And that's why, when it comes to plea bargains, he's ready to deal.

"If you take a lot of bullshit cases, you can't prosecute each one -- you'd create a bottleneck in the courts, the judges would be upset and they'd try to run DeAtley off," Schaffer says. "DeAtley understands that he has to plead these cases. We have been getting better plea bargains offered, but the prosecutors don't always agree with them."

"Criminal defense attorneys have learned that if they don't like what the trial prosecutor is offering, they can go over their heads to DeAtley," says one assistant U.S. attorney.

"We get people coming up to us and saying 'Hey, I want one of those DeAtley deals.' It's happening more and more often," says another.

DeAtley denies getting directly involved in plea bargaining, and argues that federal sentencing guidelines don't leave prosecutors much discretion anyway.

"There is no easy debate about plea bargaining, whether it's good or bad," he says. "But it's a reality and it's reflective of an effective use of our resources."

Despite the alleged new willingness to deal, the criminal defense bar as a whole isn't exactly enamored of the policy change under DeAtley. Many of the defendants are destitute and use public defenders. Private attorneys who represent the clients who are slightly better off make more money if cases go to trial. And the big-time defense lawyers, the ones who normally would be representing the cash-soaked people charged with running massive bank-fraud or drug operations, aren't seeing cases filed against their potential customer base.

(Which leads one defense attorney to note how his brethren seldom stop complaining no matter what's going on: "Before, they were saying, 'You indicted my client, you bastard'; now they're saying, 'You're not indicting my client, you bastard.' ")

The Southern District does have one huge multidefendant case that's currently ongoing, involving a Valley drug ring. Seventy-nine people were indicted and, prosecutors say, DeAtley has taken highly unusual steps to move the case along. Most surprisingly, he's removed the trial prosecutor from any plea-bargain negotiations.

"Can you imagine that? You're getting the case ready for trial, and someone you're making a case on pleads out and you're not involved, you don't know whether they're now going to cooperate, you have no say in it," says a former prosecutor who has heard from many former colleagues. "It's the most insane, ludicrous setup I've ever seen."

DeAtley denies that the lead trial attorney, who pushed for the large number of indictments, has had the power to negotiate plea bargains taken away from her. But he does say that additional prosecutors have been assigned to the case because of its size.

The case, involving what's known as the Moreno-Riojas Drug Ring, came under heavy fire when the indictments were first unsealed during the previous U.S. attorney's term. Critics said the sprawling case was massively over-indicted, and lead defense attorney Gerald Goldstein defends DeAtley's actions since taking charge.

"He's trying to clean this mess up," says Goldstein, a San Antonio lawyer who is a former president of the National Association of Criminal Defense Attorneys. "He's a first-rate, standup lawyer."

While some of his prosecutors say he can be overbearing, DeAtley says he's neither surprised nor annoyed at criticism from within. "There will always be differing opinions on priorities. It doesn't bother me," he says. "I'm not a politician, I'm just a career prosecutor trying to do his job."

E-mail Richard Connelly at rich_connelly@houstonpress.com.


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